Exhibit 4.1


 


KERZNER INTERNATIONAL LIMITED


 


(as Issuer)


 


2.375% Convertible Senior Subordinated Notes due 2024


 












 


INDENTURE


 


Dated as of April 5, 2004


 












 


The Bank of New York Trust Company, N.A.


(as Trustee)


 

















 


CROSS-REFERENCE TABLE*


 


	
  Trust Indenture Act Section

  	
   

  	
  Indenture
  Section

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  310

  	
  (a)(1)

  	
   

  	
   

  	
  7.10

  
	
   

  	
  (a)(2)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (a)(3)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (a)(4)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (a)(5)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (b)

  	
   

  	
   

  	
  7.10

  
	
   

  	
  (c)

  	
   

  	
   

  	
  N.A.

  
	
  311

  	
  (a)

  	
   

  	
   

  	
  7.11

  
	
   

  	
  (b)

  	
   

  	
   

  	
  7.11

  
	
   

  	
  (c)

  	
   

  	
   

  	
  N.A.

  
	
  312

  	
  (a)

  	
   

  	
   

  	
  2.05.

  
	
   

  	
  (b)

  	
   

  	
   

  	
  12.03

  
	
   

  	
  (c)

  	
   

  	
   

  	
  12.03

  
	
  313

  	
  (a)

  	
   

  	
   

  	
  7.06

  
	
   

  	
  (b)

  	
   

  	
   

  	
  7.06

  
	
   

  	
  (c)

  	
   

  	
   

  	
  12.02

  
	
   

  	
  (d)

  	
   

  	
   

  	
  7.06

  
	
  314

  	
  (a)

  	
   

  	
   

  	
  4.02, 4.03

  
	
   

  	
  (b)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (c)(1)

  	
   

  	
   

  	
  12.04

  
	
   

  	
  (c)(2)

  	
   

  	
   

  	
  12.04

  
	
   

  	
  (c)(3)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (d)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (e)

  	
   

  	
   

  	
  12.05

  
	
   

  	
  (f)

  	
   

  	
   

  	
  N.A.

  
	
  315

  	
  (a)

  	
   

  	
   

  	
  7.01(b)

  
	
   

  	
  (b)

  	
   

  	
   

  	
  7.05

  
	
   

  	
  (c)

  	
   

  	
   

  	
  7.01(a)

  
	
   

  	
  (d)

  	
   

  	
   

  	
  7.01(c)

  
	
   

  	
  (e)

  	
   

  	
   

  	
  6.11

  
	
  316

  	
  (a)(1)(A)

  	
   

  	
   

  	
  6.05

  
	
   

  	
  (a)(1)(B)

  	
   

  	
   

  	
  6.04

  
	
   

  	
  (a)(2)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (b)

  	
   

  	
   

  	
  N.A.

  
	
   

  	
  (c)

  	
   

  	
   

  	
  N.A.

  
	
  317

  	
  (a)(1)

  	
   

  	
   

  	
  6.08

  
	
   

  	
  (a)(2)

  	
   

  	
   

  	
  6.09

  
	
   

  	
  (b)

  	
   

  	
   

  	
  2.04

  
	
  318

  	
  (a)

  	
   

  	
   

  	
  12.01

  



 












N.A. means not
applicable.


 


* This
Cross-Reference Table is not part of the Indenture.


 


i

















 


TABLE OF CONTENTS


 


	
  ARTICLE
  1

  	
   

  
	
  DEFINITIONS AND INCORPORATION BY REFERENCE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.01 .

  	
  Definitions.

  	
   

  
	
  Section 1.02 .

  	
  Other Definitions.

  	
   

  
	
  Section
  1.03 .

  	
  Incorporation by Reference of Trust
  Indenture Act.

  	
   

  
	
  Section 1.04 .

  	
  Rules of Construction.

  	
   

  
	
  Section 1.05 .

  	
  Acts of Holders.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  2

  	
   

  
	
  THE
  SECURITIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.01 .

  	
  Form and Dating.

  	
   

  
	
  Section 2.02 .

  	
  Execution and Authentication.

  	
   

  
	
  Section
  2.03 .

  	
  Registrar, Paying Agent and Conversion
  Agent.

  	
   

  
	
  Section 2.04 .

  	
  Paying Agent to Hold Money in Trust.

  	
   

  
	
  Section 2.05 .

  	
  Holder Lists.

  	
   

  
	
  Section 2.06 .

  	
  Transfer and Exchange.

  	
   

  
	
  Section 2.07 .

  	
  Replacement Securities.

  	
   

  
	
  Section
  2.08 .

  	
  Outstanding Securities; Determinations of
  Holders’ Action.

  	
   

  
	
  Section 2.09 .

  	
  Temporary Securities.

  	
   

  
	
  Section 2.10 .

  	
  Cancellation.

  	
   

  
	
  Section 2.11 .

  	
  Persons Deemed Owners.

  	
   

  
	
  Section 2.12 .

  	
  Global Securities.

  	
   

  
	
  Section 2.13 .

  	
  CUSIP Numbers.

  	
   

  
	
  Section 2.14 .

  	
  Designation.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  3

  	
   

  
	
  REDEMPTION AND REPURCHASES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.01 .

  	
  Right to Redeem; Notices to Trustee.

  	
   

  
	
  Section
  3.02 .

  	
  Selection of Securities to Be Redeemed.

  	
   

  
	
  Section 3.03 .

  	
  Notice of Redemption.

  	
   

  
	
  Section 3.04 .

  	
  Effect of Notice of Redemption.

  	
   

  
	
  Section 3.05 .

  	
  Deposit of Redemption Price.

  	
   

  
	
  Section 3.06 .

  	
  Securities Redeemed in Part.

  	
   

  
	
  Section 3.07 .

  	
  Sinking Fund.

  	
   

  
	
  Section
  3.08 .

  	
  Repurchase of Securities at Option of the
  Holder on Specified Dates.

  	
   

  
	
  Section
  3.09 .

  	
  Repurchase of Securities at Option of the
  Holder Upon Change in Control.

  	
   

  



 


ii

















 


	
  Section
  3.10 .

  	
  Effect of Change in Control Repurchase
  Notice.

  	
   

  
	
  Section
  3.11 .

  	
  Deposit of Repurchase Price or Change in
  Control Repurchase Price.

  	
   

  
	
  Section 3.12 .

  	
  Securities Repurchased in Part.

  	
   

  
	
  Section
  3.13 .

  	
  Covenant to Comply with Securities Laws
  upon Repurchase of Securities.

  	
   

  
	
  Section 3.14 .

  	
  Repayment to the Company.

  	
   

  
	
  Section 3.15 .

  	
  Redemption Pursuant to Gaming Laws.

  	
   

  
	
  Section 3.16 

  	
  Optional Tax Redemption.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  4

  	
   

  
	
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.01 .

  	
  Payment of Securities.

  	
   

  
	
  Section 4.02 .

  	
  SEC and Other Reports.

  	
   

  
	
  Section
  4.03 .

  	
  Compliance Certificate; Notice of Default.

  	
   

  
	
  Section 4.04 .

  	
  Maintenance of Office or Agency.

  	
   

  
	
  Section 4.05 .

  	
  Delivery of Certain Information.

  	
   

  
	
  Section 4.06 .

  	
  Additional Interest.

  	
   

  
	
  Section
  4.07 .

  	
  Additional Amounts.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  5

  	
   

  
	
  SUCCESSOR CORPORATION

  	
   

  
	
   

  	
   

  	
   

  
	
  Section
  5.01 .

  	
  When the Company May Consolidate, Merge or
  Transfer Assets.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  6

  	
   

  
	
  DEFAULTS AND REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.01 .

  	
  Events of Default.

  	
   

  
	
  Section 6.02 .

  	
  Acceleration.

  	
   

  
	
  Section 6.03 .

  	
  Other Remedies.

  	
   

  
	
  Section 6.04 .

  	
  Waiver of Past Defaults.

  	
   

  
	
  Section 6.05 .

  	
  Control by Majority.

  	
   

  
	
  Section 6.06 .

  	
  Limitation on Suits.

  	
   

  
	
  Section
  6.07 .

  	
  Rights of Holders to Receive Payment and to
  Convert.

  	
   

  
	
  Section 6.08 .

  	
  Collection Suit by Trustee.

  	
   

  
	
  Section 6.09 .

  	
  Trustee May File Proofs of Claim.

  	
   

  
	
  Section 6.10 .

  	
  Priorities.

  	
   

  
	
  Section 6.11 .

  	
  Suits.

  	
   

  
	
  Section
  6.12 .

  	
  Waiver of Stay, Extension or Usury Laws.

  	
   

  



 


iii

















 


	
  ARTICLE
  7

  	
   

  
	
  TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.01 .

  	
  Duties of Trustee.

  	
   

  
	
  Section 7.02 .

  	
  Rights of Trustee.

  	
   

  
	
  Section 7.03 .

  	
  Individual Rights of Trustee.

  	
   

  
	
  Section 7.04 .

  	
  Trustee’s Disclaimer.

  	
   

  
	
  Section 7.05 .

  	
  Notice of Defaults.

  	
   

  
	
  Section 7.06 .

  	
  Reports by Trustee to Holders.

  	
   

  
	
  Section 7.07 .

  	
  Compensation and Indemnity.

  	
   

  
	
  Section 7.08 .

  	
  Replacement of Trustee.

  	
   

  
	
  Section 7.09 .

  	
  Successor Trustee by Merger Etc.

  	
   

  
	
  Section 7.10 .

  	
  Eligibility; Disqualification.

  	
   

  
	
  Section
  7.11 .

  	
  Preferential Collection of Claims Against
  Company.

  	
   

  
	
  Section 7.12 .

  	
  Force Majeure.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  8

  	
   

  
	
  DISCHARGE OF INDENTURE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section
  8.01 .

  	
  Discharge of Liability on Securities.

  	
   

  
	
  Section 8.02 .

  	
  Repayment to the Company.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  9

  	
   

  
	
  AMENDMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.01 .

  	
  Without Consent of Holders.

  	
   

  
	
  Section 9.02 .

  	
  With Consent of Holders.

  	
   

  
	
  Section
  9.03 .

  	
  Compliance with Trust Indenture Act.

  	
   

  
	
  Section 9.04 .

  	
  Revocation and Effect of Consents.

  	
   

  
	
  Section
  9.05 .

  	
  Notation on or Exchange of Securities.

  	
   

  
	
  Section
  9.06 .

  	
  Trustee to Sign Supplemental Indentures.

  	
   

  
	
  Section 9.07 .

  	
  Effect of Supplemental Indentures.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  10

  	
   

  
	
  CONVERSION OF THE SECURITIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.01 .

  	
  Conversion Privilege.

  	
   

  
	
  Section 10.02 .

  	
  Conversion Procedure.

  	
   

  
	
  Section 10.03 .

  	
  Taxes on Conversion.

  	
   

  
	
  Section 10.04 .

  	
  Company to Provide Stock.

  	
   

  
	
  Section 10.05 .

  	
  Adjustment of Conversion Price.

  	
   

  
	
  Section 10.06 .

  	
  No Adjustment.

  	
   

  
	
  Section 10.07 .

  	
  Equivalent Adjustments.

  	
   

  
	
  Section 10.08 .

  	
  Adjustment for Tax Purposes.

  	
   

  
	
  Section 10.09 .

  	
  Notice of Adjustment.

  	
   

  
	
  Section 10.10 .

  	
  Notice of Certain Transactions.

  	
   

  



 


iv

















 


	
  Section
  10.11 .

  	
  Effect of Reclassification, Consolidation,
  Merger, Share Exchange or Sale on Conversion Privilege.

  	
   

  
	
  Section 10.12 .

  	
  Trustee’s Disclaimer.

  	
   

  
	
  Section 10.13 .

  	
  Voluntary Reduction.

  	
   

  
	
  Section
  10.14 .

  	
  Conversion Value of Securities Tendered.

  	
   

  
	
  Section 10.15 .

  	
  Simultaneous Adjustments.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  11

  	
   

  
	
  SUBORDINATION

  	
   

  
	
   

  	
   

  	
   

  
	
  Section
  11.01 .

  	
  Securities Subordinated to Senior Debt.

  	
   

  
	
  Section
  11.02

  	
  No Payment on Securities in Certain
  Circumstances.

  	
   

  
	
  Section
  11.03

  	
  Securities Subordinated to Prior Payment of
  All Senior Debt on Dissolution, Liquidation or Reorganization.

  	
   

  
	
  Section
  11.04

  	
  Securityholders to Be Subrogated to Rights
  of Holders of Senior Debt.

  	
   

  
	
  Section
  11.05

  	
  Obligations of the Company Unconditional.

  	
   

  
	
  Section
  11.06

  	
  Trustee Entitled to Assume Payments Not
  Prohibited in Absence of Notice.

  	
   

  
	
  Section
  11.07

  	
  Application by Trustee of Assets Deposited
  with It.

  	
   

  
	
  Section
  11.08

  	
  Subordination Rights Not Impaired by Acts
  or Omissions of the Company or Holders of Senior Debt, Etc.; Modifications.

  	
   

  
	
  Section
  11.09

  	
  Securityholders Authorize Trustee to
  Effectuate Subordination of Securities.

  	
   

  
	
  Section 11.10

  	
  Right of Trustee to Hold Senior Debt.

  	
   

  
	
  Section
  11.11

  	
  Article 11 Not to Prevent Events of
  Default.

  	
   

  
	
  Section
  11.12

  	
  No Fiduciary Duty of Trustee to Holders of
  Senior Debt.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  12

  	
   

  
	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 12.01 .

  	
  Trust Indenture Act Controls.

  	
   

  
	
  Section 12.02 .

  	
  Notices.

  	
   

  
	
  Section
  12.03 .

  	
  Communication by Holders with Other
  Holders.

  	
   

  
	
  Section
  12.04 .

  	
  Certificate and Opinion as to Conditions
  Precedent.

  	
   

  
	
  Section
  12.05 .

  	
  Statements Required in Certificate or
  Opinion.

  	
   

  
	
  Section 12.06 .

  	
  Separability Clause.

  	
   

  
	
  Section
  12.07 .

  	
  Rules by Trustee, Paying Agent, Conversion
  Agent and Registrar.

  	
   

  
	
  Section 12.08 .

  	
  Legal Holidays.

  	
   

  
	
  Section 12.09 .

  	
  Governing Law.

  	
   

  
	
  Section
  12.10 .

  	
  No Adverse Interpretation of Other
  Agreements.

  	
   

  
	
  Section 12.11 .

  	
  No Recourse Against Others.

  	
   

  
	
  Section 12.12 .

  	
  Successors.

  	
   

  
	
  Section 12.13 .

  	
  Multiple Originals.

  	
   

  



 


v

















 


	
  Section 12.14 .

  	
  Table of Contents and Headings.

  	
   

  



 


	
  Exhibit A

  	
   

  	
  -

  	
   

  	
  Form of Global Security

  
	
  Exhibit B

  	
   

  	
  -

  	
   

  	
  Transfer Certificate

  



 


vi

















 


INDENTURE
dated as of April 5, 2004 among KERZNER INTERNATIONAL LIMITED, an international
business company organized under the laws of the Commonwealth of The Bahamas
(the “Company”), and THE BANK OF
NEW YORK TRUST COMPANY, N.A., a national banking association organized under
the laws of the United States of America (the “Trustee”).


 


Each party
agrees as follows for the benefit of the other party and for the equal and
ratable benefit of the Holders (as defined below) of the Company’s 2.375%
Convertible Senior Subordinated Notes due 2024 (the “Securities”):


 


ARTICLE 1

DEFINITIONS AND INCORPORATION BY
REFERENCE


 


Section
1.01.  Definitions.


 


“Additional Interest” has the meaning set
forth in the Registration Rights Agreement dated as of April 5, 2004 between
the Company and Deutsche Bank Securities Inc., as representative of the Initial
Purchasers.


 


“Affiliate” has the meaning provided in Rule
405 under the Securities Act.


 


“Agent” means any Registrar, Paying Agent,
Conversion Agent or co-registrar.


 


“Applicable Procedures” means, with respect
to any transfer or transaction involving a Global Security or beneficial
interests therein, the rules and procedures of the Depositary for such Global
Security, in each case to the extent applicable to such transaction and as in
effect from time to time.


 


“Bankruptcy Law” means Title 11, U.S. Code
or any similar federal, state, or foreign law for the relief of debtors.


 


“Beneficial Owner” or “beneficial owner” has the meaning
attributed to it in Rules 13d-3 and 13d-5 under the Exchange Act (as in effect
on the Issue Date), whether or not applicable.


 


“Board of Directors” means, with respect to
any person, the Board of Directors of such person or any committee of the Board
of Directors of such person authorized, with respect to any particular matter,
to exercise the power of the Board of Directors of such person.


 


“Board Resolution” means, with respect to
any person, a duly adopted resolution of the Board of Directors of such person.


 

















 


“Business Day” means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions
in New York, New York or the New York Stock Exchange are authorized or
obligated by law or executive order to close.


 


“Capital Stock” means, with respect to any
corporation, any and all shares, interests, rights to purchase (other than
convertible or exchangeable indebtedness that is not otherwise itself capital
stock), warrants, options, participations or other equivalents of or interests
(however designated) in stock issued by that corporation.


 


“Cash Equivalents” means (a) (i) securities
issued or directly and fully guaranteed or insured by the United States of
America or any agency or instrumentality thereof (provided that the full faith
and credit of the United States of America is pledged in support thereof), (ii)
time deposits and certificates of deposit of any domestic commercial bank of
recognized standing having capital and surplus in excess of $500 million or
(iii) commercial paper issued by others rated at least A-1 or the equivalent
thereof by Standard & Poor’s Corporation or at least P-1 or the equivalent
thereof by Moody’s Investors Service, Inc., and in the case of each of (i),
(ii) and (iii) above maturing within one year after the date of acquisition or
(b) shares of money market mutual funds or similar funds having assets in
excess of $500 million.


 


“Change in Control” means the occurrence of
one or more of the following events:


 


(i) any sale,
transfer or other conveyance, whether direct or indirect, of all or
substantially all of the assets, on a consolidated basis, of the Company, in
one transaction or a series of related transactions (in each case other than to
a person that is a Permitted Holder);


 


(ii) any
merger or consolidation of the Company with or into any person if, immediately
after giving effect to such transaction, any “person” or “group” (as such terms
are used for purposes of Sections 13(d) and 14(d) of the Exchange Act, whether
or not applicable) (other than one or more Permitted Holders) is or becomes the
“beneficial owner,” directly or indirectly, of more than 50% of the total
voting power in the aggregate normally entitled to vote in the election of
directors, managers, or trustees, as applicable, of the surviving entity or
entities;


 


(iii) any
“person” or “group” (as such terms are used for purposes of Sections 13(d) and
14(d) of the Exchange Act, whether or not applicable) (other than one or more
Permitted Holders) is or becomes the “beneficial owner,” directly or
indirectly, of more than 50% of the total voting power in the aggregate


 


2

















 


 of all classes of Capital Stock of the
Company then outstanding normally entitled to vote in elections of directors;


 


(iv) during
any period of 12 consecutive months after the Issue Date, individuals who at the
beginning of any such 12-month period constituted the Board of Directors of the
Company (together with any new directors whose election by such Board of
Directors or whose nomination for election by the shareholders of the Company
was approved by a vote of a majority of the directors then still in office who
were either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the Board of Directors of the Company then in office;
or


 


(v) the
adoption of a plan relating to the liquidation or dissolution of the Company.


 


“Company” means the party named as the
“Company” in the first paragraph of this Indenture until a successor replaces
it pursuant to the applicable provisions of this Indenture and, thereafter,
shall mean such successor.  The
foregoing sentence shall likewise apply to any subsequent successor or
successors.


 


“Company Order” means a written request or
order signed in the name of the Company by any two Officers.


 


“Conversion Price” means $58.24 per Ordinary
Share as of the date of this Indenture, subject to the adjustments described in
Section 10.05 hereof.


 


“Conversion Rate” means the number of
Ordinary Shares equal to $1,000 divided by the Conversion Price, which shall be
approximately 17.1703 as of the date of this Indenture.


 


“Corporate Trust Office” means the office of
the Trustee at which at any time the trust created by this Indenture shall be
administered, which office at the date hereof is located at The Bank of New
York Trust Company, N.A., 10161 Centurion Parkway, Jacksonville, Florida 32256,
Attention: Corporate Trust Division, or such other address as the Trustee may
designate from time to time by notice to the Holders and the Company, or the
principal corporate trust office of any successor Trustee (or such other
address as a successor Trustee may designate from time to time by notice to the
Holders and the Company).


 


“Credit Agreement” means the Fourth Amended
and Restated Revolving Credit Facility dated as of November 13, 2001 among the
Company, Kerzner International North America, Inc. and Kerzner International
Bahamas Limited, various financial institutions as Lenders and Canadian
Imperial Bank of


 


3

















 


Commerce, as administrative agent, providing
for a revolving credit facility, including any related notes, guarantees,
collateral documents, instruments and agreements executed in connection
therewith, as such credit agreement and/or related documents may be amended,
restated, supplemented, renewed, replaced or otherwise modified from time to
time whether or not with the same agent, trustee, representative lenders or
holders, and, subject to the proviso to the next succeeding sentence,
irrespective of any changes in the terms and conditions thereof.  Without limiting the generality of the
foregoing, the term “Credit Agreement” shall include agreements in respect of
interest swap and hedging obligations entered into for bona fide hedging
purposes and not entered into for speculative purposes with lenders party to
the Credit Agreement or their affiliates and shall also include any amendment,
amendment and restatement, renewal, extension, restructuring, supplement or
modification to any Credit Agreement and all refundings, refinancings and
replacements of any Credit Agreement, including any agreement (i) extending or
shortening the maturity of any indebtedness incurred thereunder or contemplated
thereby, (ii) adding or deleting borrowers or guarantors thereunder, so long as
borrowers and issuers include one or more of the Company and its Subsidiaries
and their respective successors and assigns, (iii) increasing the amount of
indebtedness incurred thereunder or available to be borrowed thereunder, or
(iv) otherwise altering the terms and conditions thereof in a manner not
prohibited by the terms hereof.


 


“Default” means any event which is, or after
notice or passage of time or both would be, an Event of Default.


 


“Disqualified Capital Stock” (i) except as
set forth in (ii), with respect to any person, Equity Interests of such person
that, by their terms or by the terms of any security into which they are
convertible, exercisable or exchangeable, are, or upon the happening of an
event or the passage of time would be, required to be redeemed or repurchased
(including at the option of the holder thereof) by such person or any of its
Subsidiaries, in whole or in part, on or prior to the Stated Maturity of the
Securities and (ii) with respect to any Subsidiary of such person, any Equity
Interests other than any common equity with no preference, privileges, or
redemption or repayment provisions. 
Notwithstanding the foregoing, any Equity Interests that would constitute
Disqualified Capital Stock solely because the holders thereof have the right to
require such person to repurchase such Equity Interests upon the occurrence of
a change of control or with the proceeds of an asset sale shall not constitute
Disqualified Capital Stock if the terms of such Equity Interests provide that
the Company may not repurchase or redeem any such Equity Interests pursuant to
such provisions prior to the Company’s purchase of the Securities as are
required to be purchased pursuant to the provisions of Section 3.09 hereof, as
applicable.


 


4

















 


“Equity Interest” of any person means any
shares, interests, participations or other equivalents (however designated) in
such person’s equity, and shall in any event include any Capital Stock issued
by, or partnership or membership interests in, such person.


 


“Exchange Act” means the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder,
as in effect from time to time.


 


“GAAP” means generally accepted accounting
principles set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as may be approved by a significant
segment of the accounting profession of the United States, as in effect on the
Issue Date.


 


“Gaming Authority” means any regulatory body
responsible for a gaming license held by the Company or a Subsidiary of the
Company or any agency (including any agency established by a United States
Federally recognized Indian tribe to regulate gaming on such tribe’s
reservation) which has, or may at any time after the Issue Date have,
jurisdiction over the gaming activities of the Company or any Subsidiary of any
of the Company or any successor to such authority.


 


“Holder” or “Securityholder” means a Person in whose name a Security is
registered on the Registrar’s books.


 


“Indenture” means this Indenture, as amended
or supplemented from time to time in accordance with the terms hereof,
including the provisions of the TIA that are deemed to be a part hereof.


 


“Initial Purchasers” shall mean Deutsche
Bank Securities Inc., Bear, Stearns & Co. Inc., J.P. Morgan Securities
Inc., CIBC World Markets Corp. and Wells Fargo Securities LLC.


 


“Issue Date” shall mean April 5, 2004.


 


“Junior Security” means any Qualified
Capital Stock and any indebtedness of the Company, that (i) is subordinated in
right of payment to Senior Debt at least to the same extent as the Securities,
(ii) has no scheduled installment of principal due, by redemption, sinking fund
payment or otherwise, on or prior to the Stated Maturity of the Securities,
(iii) does not have covenants or default provisions materially more beneficial
to the Holders of the Securities than those in effect with respect to the
Securities on the Issue Date and (iv) was authorized by an order or decree of a
court of competent jurisdiction that gave


 


5

















 


effect to (and states in such order or decree
that effect has been given to) the subordination of such securities to all
Senior Debt of the Company not paid in full in cash or Cash Equivalents in
connection with such reorganization; provided
that all such Senior Debt is assumed by the reorganized corporation
and the rights of the holders of any such Senior Debt are not, without the
consent of such holders, altered by such reorganization, which consent shall be
deemed to have been given if the holders of such Senior Debt, individually or
as a class, shall have approved such reorganization.


 


“Market Price” means the average of the
Ordinary Share Prices for 20 consecutive Trading Days commencing 30 Trading
Days before the record date with respect to any distribution, issuance or other
event requiring such computation, appropriately adjusted (as determined in good
faith by the Board of Directors, whose determination shall be conclusive) to
take into account the occurrence, during the period commencing on the first of
such 20 consecutive Trading Days and ending on such record date, of any event
requiring adjustment of the Conversion Price under this Indenture.


 


“Obligations” means all obligations for
principal, premium, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the documentation
under which any indebtedness is created, evidenced or secured, including in the
case of the Securities, Additional Interest, if any.


 


“Offering Memorandum” means the offering
memorandum of the Company dated March 30, 2004 relating to the offering of the
Securities.


 


“Officer”
means, with respect to the Company, the Chairman of the Board, the Chief
Executive Officer, the President, any Vice President, the Chief Financial
Officer, the Treasurer, the Controller, or the Secretary or Assistant
Secretary.


 


“Officers’ Certificate” means a written
certificate containing the information specified in Sections 12.04 and 12.05,
signed in the name of the Company by any two Officers, and delivered to the
Trustee.  An Officers’ Certificate given
pursuant to Section 4.03 shall be signed by the principal executive officer,
principal financial officer or the principal accounting officer of the Company
but need not contain the information specified in Sections 12.04 and 12.05.


 


“Opinion of Counsel” means a written opinion
containing the information specified in Sections 12.04 and 12.05, from legal
counsel who is acceptable to the Trustee. 
The counsel may be an employee of, or counsel to, the Company.


 


6

















 


“Ordinary Shares” shall mean shares of the
Company’s Ordinary Shares, par value $0.001 per share, as they exist on the
date of this Indenture or any other shares of Capital Stock of the Company into
which the Ordinary Shares shall be reclassified or changed.


 


“Ordinary Share Price” on any date means the
closing sale price per Ordinary Share (or if no closing sale price is reported,
the average of the bid and ask prices or, if more than one in either case, the
average of the average bid and the average ask prices) on such date for the
Ordinary Shares as reported in composite transactions on the principal United
States securities exchange on which the Ordinary Shares are traded or, if the
Ordinary Shares are not listed on a United States national or regional
securities exchange, as reported by The NASDAQ System.


 


“Permitted Holder” means Solomon Kerzner,
his immediate family or a trust or similar entity existing solely for his
benefit or for the benefit of his immediate family.


 


“Person” means any individual, corporation,
limited liability company, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization, government or any agency or political
subdivision thereof or other entity.


 


“Qualified Capital Stock” means any Capital
Stock of the Company that is not Disqualified Capital Stock.


 


“Redemption Date” shall mean a date
specified for redemption of the Securities in accordance with the terms of this
Indenture.


 


“Responsible Officer” shall mean, when used
with respect to the Trustee, any officer within the corporate trust department
of the Trustee, including any vice president, assistant vice president, trust
officer or any other officer of the Trustee who customarily performs functions
similar to those performed by the Persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is referred
because of such person’s knowledge of and familiarity with the particular
subject and who shall have direct responsibility for the administration of this
Indenture.


 


“Rule 144A” means Rule 144A under the
Securities Act (or any successor provision), as it may be amended from time to
time.


 


“SEC” means the Securities and Exchange
Commission.


 


“Security” or “Securities” means any of the Company’s 2.375% Convertible
Senior Subordinated Notes due 2024 issued under this Indenture.


 


7

















 


“Securities Act” means the Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder, as in
effect from time to time.


 


“Senior Debt” of the Company means
indebtedness (including and together with all monetary obligations in respect
of the Credit Agreement, and interest, whether or not allowable, accruing on
indebtedness incurred pursuant to the Credit Agreement after the filing of a
petition initiating any proceeding under any bankruptcy, insolvency or similar
law or which would have accrued but for such filing) of the Company arising
under the Credit Agreement or that, by the terms of the instrument creating or
evidencing such indebtedness, is expressly designated Senior Debt and made
senior in right of payment to the Securities; provided,
that in no event shall Senior Debt include (a) indebtedness to any
Subsidiary of the Company or any officer, director or employee of the Company
or any Subsidiary of the Company (other than indebtedness that is required to
be pledged to the lenders under the Credit Agreement), (b) indebtedness to
trade creditors, (c) Disqualified Capital Stock, and (d) any liability for
taxes owed or owing by the Company.


 


“Significant Subsidiary” has the meaning
ascribed to such term in Regulation S-X (17 CFR Part 210).


 


“Stated Maturity”, when used with respect to
any Security, means the date specified in such Security as the fixed date on
which an amount equal to the principal amount of such Security is due and
payable.


 


“Subsidiary” means, with respect to any
Person, (i) any corporation of which the outstanding Capital Stock having at
least a majority of the votes entitled to be cast in the election of directors
under ordinary circumstances (determined without regard to any classification
of directors) shall at the time be owned, directly or indirectly, by such
Person, (ii) any other Person (other than a partnership) of which at least a
majority of the voting interests under ordinary circumstances is at the time,
directly or indirectly, owned by such Person or (iii) any partnership (a) the
sole general partner or the managing general partner of which is such Person or
a Subsidiary of such Person or (b) the only general partners of which are such
Person or one or more Subsidiaries of such Person (or any combination thereof).


 


“TIA” means the Trust Indenture Act of 1939
(15 U.S. Code §§ 77aaa-77bbbb) as in effect on the date of the execution of
this Indenture, except as permitted in Section 9.03.


 


“Trading Day” means any regular or
abbreviated trading day of The New York Stock Exchange.


 


8

















 


“Trading Price of the Securities” on any
date of determination means the average of the secondary market bid quotations
per $1,000 principal amount of Securities obtained by the Trustee for
$5,000,000 principal amount of the Securities at approximately 3:30 p.m., New
York City time, on such determination date from three independent nationally
recognized securities dealers the Company selects, which may include any of the
Initial Purchasers; provided that
if at least three such bids cannot reasonably be obtained by the Trustee, but
two such bids are obtained, then the average of the two bids shall be used, and
if only one such bid can reasonably be obtained by the Trustee, this one bid
shall be used.  If the Trustee cannot reasonably
obtain at least one such bid or, in the Company’s reasonable judgment, the bid
quotations are not indicative of the secondary market value of the Securities,
then the Trading Price of the Securities will be determined in good faith by
the Trustee, taking into account in such determination such factors as it, in
its sole discretion after consultation with the Company, deems
appropriate.  The Trustee shall not be
required to determine the Trading Price of the Securities unless requested in
writing by the Company.


 


“Transfer Restricted Securities Legend”
means the legend labeled as such and that is set forth in Exhibit A hereto.


 


“Trustee” means the party named as the “Trustee” in the first paragraph of this
Indenture until a successor replaces it pursuant to the applicable provisions
of this Indenture and, thereafter, shall mean such successor.  The foregoing sentence shall likewise apply
to any subsequent such successor or successors.


 


Section 1.02.  Other Definitions. 



 


	
  Term

  	
   

  	
  Defined in
  Section

  
	
   

  	
   

  	
   

  
	
  Acceleration Notice

  	
   

  	
  6.02(a)

  
	
  Accepted Purchased Shares

  	
   

  	
  10.05(f)

  
	
  Act

  	
   

  	
  1.05(a)

  
	
  Agent Members

  	
   

  	
  2.12(e)

  
	
  Authenticating Agent

  	
   

  	
  2.02

  
	
  Change in Control Repurchase Date

  	
   

  	
  3.09(a)

  
	
  Change in Control Repurchase Price

  	
   

  	
  3.09(a)

  
	
  Change in Control Repurchase Notice

  	
   

  	
  3.09(c)

  
	
  Company Change in Control Repurchase Notice

  	
   

  	
  3.09(b)

  
	
  Company Repurchase Notice

  	
   

  	
  3.08(b)

  
	
  Conversion Agent

  	
   

  	
  2.03

  
	
  Conversion Date

  	
   

  	
  10.02(a)

  
	
  Conversion Value

  	
   

  	
  10.14(a)

  
	
  Depositary

  	
   

  	
  2.01(b)

  
	
  Determination Date

  	
   

  	
  10.14(b)

  



 


9

















 


	
  Term

  	
   

  	
  Defined in
  Section

  
	
   

  	
   

  	
   

  
	
  DTC

  	
   

  	
  2.01(b)

  
	
  Event of Default

  	
   

  	
  6.01

  
	
  Ex-Dividend Date

  	
   

  	
  10.01(c)

  
	
  Expiration Time

  	
   

  	
  10.05(d)

  
	
  Global Security

  	
   

  	
  2.01(b)

  
	
  Legal Holiday

  	
   

  	
  12.08

  
	
  Net Share Amount

  	
   

  	
  10.14(b)

  
	
  Net Shares

  	
   

  	
  10.14(b)

  
	
  Offer Expiration Time

  	
   

  	
  10.05(f)

  
	
  Paying Agent

  	
   

  	
  2.03

  
	
  Payment Default

  	
   

  	
  11.02(a)

  
	
  Principal Return

  	
   

  	
  10.14(b)

  
	
  Pre-Dividend Sale Price

  	
   

  	
  10.05(e)

  
	
  Principal Value Conversion

  	
   

  	
  10.01(a)

  
	
  Purchased Shares

  	
   

  	
  10.05(d)

  
	
  Repurchase Date

  	
   

  	
  3.08(a)

  
	
  Repurchase Notice

  	
   

  	
  3.08(a)

  
	
  Repurchase Price

  	
   

  	
  3.08(a)

  
	
  QIB

  	
   

  	
  2.06(e)

  
	
  Quarter

  	
   

  	
  10.01(a)

  
	
  Redemption Price

  	
   

  	
  3.01(a)

  
	
  Registrar

  	
   

  	
  2.03

  
	
  Rule 144A Information

  	
   

  	
  4.05

  
	
  Transfer Restricted Securities

  	
   

  	
  2.06(e)

  
	
  Ten Day Average Closing Share Price

  	
   

  	
  10.14(a)

  



 


Section 1.03.  Incorporation by Reference of Trust
Indenture Act.


 


Whenever this
Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture.  The following TIA terms incorporated by reference in this
Indenture have the following meanings:


 


“Commission” means the SEC.


 


“Indenture Securities” means the Securities.


 


“Indenture Security Holder” means a Holder.


 


“Indenture to be Qualified” means this
Indenture.


 


“Indenture Trustee” or “Institutional Trustee” means the Trustee.


 


“Obligor” on the indenture securities means
the Company.


 


10

















 


All other TIA
terms incorporated by reference in this Indenture that are defined by the TIA,
defined by a TIA reference to another statute or defined by an SEC rule have
the meanings assigned to them by such definitions.


 


Section 1.04.  Rules of Construction.  Unless the context otherwise requires:


 


(a)           a term has the meaning
assigned to it;


 


(b)           an accounting term not
otherwise defined has the meaning assigned to it in accordance with GAAP;


 


(c)           “or” is not exclusive;


 


(d)           “including” means
including, without limitation; and


 


(e)           words in the singular
include the plural, and words in the plural include the singular.


 


Section 1.05.  Acts of Holders.


 


(a)           Whenever in this
Indenture it is provided that the Holders of a specified percentage in
aggregate principal amount of the Securities may take action (including the
making of any demand or request, the giving of any direction, notice, consent
or waiver or the taking of any other action) the fact that at the time of
taking any such action the Holders of such specified percentage have joined
therein may be evidenced (a) by any instrument or any number of instruments of
similar tenor executed by Holders in person or by agent or proxy appointed in
writing, (b) by the record of the Holders voting in favor thereof at any
meeting of Holders duly called and held in accordance with procedures approved
by the Trustee, (c) by a combination of such instrument or instruments and any
such record of such a meeting of Holders or (d) in the case of Securities
evidenced by a Global Security, by any electronic transmission or other
message, whether or not in written format, that complies with the Applicable
Procedures.  Such evidence (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the “Act” of the relevant
Holders.  Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.


 


(b)           The fact and date of
the execution by any Person of any such instrument or writing may be proved by
the affidavit of a witness of such execution or by a certificate of a notary
public or other officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing acknowledged
to such officer the execution thereof. 
Where


 


11

















 


such execution is by a signer acting in a
capacity other than such signer’s individual capacity, such certificate or
affidavit shall also constitute sufficient proof of such signer’s authority.
The fact and date of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in any other
manner which the Trustee deems sufficient.


 


(c)           The ownership of
Securities shall be proved by the register maintained by the Registrar.


 


(d)           Any request, demand,
authorization, direction, notice, consent, waiver or other Act of the Holder of
any Security shall bind every future Holder of the same Security and the holder
of every Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee or the Company in reliance thereon, whether
or not notation of such action is made upon such Security.


 


(e)           If the Company shall
solicit from the Holders any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company may, at its option, by or pursuant to
a Board Resolution, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but the Company shall have no obligation
to do so.  If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but only the
Holders of record at the close of business on such record date shall be deemed
to be Holders for the purposes of determining whether Holders of the requisite
proportion of outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or
other Act, and for that purpose the outstanding Securities shall be computed as
of such record date; provided
that no such authorization, agreement or consent by the Holders on such record
date shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record date.


 


ARTICLE 2

THE SECURITIES


 


Section 2.01.  Form and Dating.


 


(a)           Forms.  The Securities and the Trustee’s certificate
of authentication shall be substantially in the forms set forth on Exhibit A,
which are a part of this Indenture and incorporated by reference herein.  The Securities may have notations, legends
or endorsements required by law, stock exchange rule or usage; provided that any such notation, legend or
endorsement required by usage is in a


 


12

















 


form acceptable to the Company.  Any such notations, legends or endorsements
not contained in the form of Security attached as Exhibit A hereto shall be
delivered in writing to the Trustee. 
Each Security shall be dated the date of its authentication.


 


(b)           Global Securities.  Unless otherwise required by law or
otherwise contemplated by Section 2.12(a), all of the Securities will be
represented by one or more Securities in global form (a “Global Security”), which shall be deposited
with the Trustee at its Corporate Trust Office, as custodian for the Depositary
and registered in the name of The Depository Trust Company (“DTC”) or the nominee thereof (such
depositary, or any successor thereto, and any such nominee being hereinafter
referred to as the “Depositary”),
duly executed by the Company and authenticated by the Trustee as hereinafter
provided.


 


Each Global
Security shall represent such of the outstanding Securities as shall be
specified therein and each shall provide that it shall represent the aggregate
amount of outstanding Securities from time to time endorsed thereon and that
the aggregate amount of outstanding Securities represented thereby may from
time to time be reduced or increased, as appropriate, to reflect exchanges,
redemptions and conversions.


 


Any adjustment
of the aggregate principal amount of a Global Security to reflect the amount of
any increase or decrease in the amount of outstanding Securities represented
thereby shall be made by the Trustee as required by Section 2.12 hereof and
shall be made on the records of the Trustee and the Depositary.


 


Section 2.02.  Execution and Authentication. The Securities shall
be executed on behalf of the Company by the manual or facsimile signature of
any Officer.


 


Securities
bearing the manual or facsimile signatures of individuals who were at the time
of the execution of the Securities the proper Officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of authentication of such
Securities.


 


No Security
shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Security a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder (which delivery may be by facsimile).


 


13

















 


The Trustee
may appoint an authenticating agent (the “Authenticating
Agent”) reasonably acceptable to the Company to authenticate Securities.  Unless otherwise provided in the
appointment, the Authenticating Agent may authenticate Securities whenever the
Trustee may do so.  Each reference in
this Indenture to authentication by the Trustee includes authentication by the
Authenticating Agent.  The
Authenticating Agent has the same rights as an Agent to deal with the Company
or with any Affiliate of the Company.


 


The Trustee
shall, upon a written order of the Company signed by an Officer (an “Authentication Order”), authenticate
Securities for issuance up to the aggregate principal amount stated in such
Authentication Order; provided that
Securities authenticated for issuance on the Issue Date shall not exceed
$230,000,000 (which includes the Initial Purchasers’ option to purchase
additional Securities in an aggregate principal amount of up to $30,000,000) in
aggregate principal amount.  The
aggregate principal amount of Securities outstanding at any time may not exceed
the amount set forth in the foregoing sentence, except as provided in Section
2.07.


 


The Securities
shall be issued only in registered form without coupons and only in
denominations of $1,000 of principal amount and any integral multiple thereof.


 


Section 2.03.  Registrar, Paying Agent and
Conversion Agent.  The
Company shall maintain an office or agency where Securities may be presented
for registration of transfer or for exchange (the “Registrar”), an office or agency where Securities may be
presented for repurchase or payment (the “Paying
Agent”) and an office or agency where Securities may be presented
for conversion (the “Conversion Agent”).  The Registrar shall keep a register of the
Securities and of their transfer and exchange. 
The Company, upon prior written notice to the Trustee, may have one or
more co-registrars, one or more additional paying agents reasonably acceptable
to the Trustee and one or more additional conversion agents.  The term “Paying Agent” includes any
additional paying agent, including any named pursuant to Section 4.04.  The term “Conversion Agent” includes any
additional conversion agent, including any named pursuant to Section 4.04.


 


The Company
shall enter into an appropriate agency agreement with any Registrar, Paying
Agent, Conversion Agent or co-registrar (if other than the Trustee).  Such agreement shall implement the
provisions of this Indenture that relate to such Agent.  The Company shall notify the Trustee, in
advance, of the name and address of any such Agent.  If the Company fails to maintain a Registrar, Paying Agent or
Conversion Agent, the Trustee shall act as such and shall be entitled to
appropriate compensation therefor pursuant to Section 7.07.  The Company or any of its Subsidiaries or an
Affiliate of the Company or any of 


 


14

















 


its Subsidiaries may act as Paying Agent,
Registrar, Conversion Agent or co-registrar.


 


The Company
initially appoints the Trustee as Registrar, Conversion Agent and Paying Agent
in connection with the Securities.


 


Section 2.04.  Paying Agent to Hold Money in Trust.  Except as otherwise provided
herein, not later than 11:00 a.m. (New York City time) on each due date of
payments in respect of any Security, the Company shall deposit with the Paying
Agent a sum of money sufficient to make such payments becoming due.  The Company shall require each Paying Agent
(other than the Trustee) to agree in writing that such Paying Agent shall hold
in trust for the benefit of Holders or the Trustee all money held by such
Paying Agent for the making of payments in respect of the Securities and shall
notify the Trustee of any default by the Company in making any such
payment.  At any time during the
continuance of any such default, such Paying Agent shall, upon the written
request of the Trustee, forthwith pay to the Trustee all moneys held in
trust.  If the Company, a Subsidiary of
the Company or an Affiliate of the Company or any of its Subsidiaries acts as
Paying Agent, it shall segregate the money held by it as Paying Agent and hold
it as a separate trust fund.  The
Company at any time may require each Paying Agent to pay all money held by it
to the Trustee and to account for any funds disbursed by it.  Upon doing so, such Paying Agent shall have
no further liability for such money or Ordinary Shares, as the case may be.


 


Section 2.05.  Holder Lists.  The
Trustee shall preserve in as current a form as is reasonably practicable the
most recent list available to it of the names and addresses of Holders.  If the Trustee is not the Registrar, the
Company shall furnish to the Trustee on or before the third Business Day
preceding each Interest Payment Date and at such other times as the Trustee may
request in writing a list in such form and as of such date as the Trustee
reasonably may require of the names and addresses of Holders.  The Trustee, the Registrar and the Company
shall provide a current securityholder list to any Gaming Authority upon
demand.


 


Section 2.06.  Transfer and Exchange.


 


(a)           Subject
to Section 2.12 hereof, upon surrender for registration of transfer of any
Securities to the Registrar, together with a written instrument of transfer
satisfactory to the Registrar, substantially in the form affixed to the form of
Security attached as Exhibit A hereto, duly executed by the Holder thereof or
such Holder’s attorney duly authorized in writing, at the office or agency of
the Registrar or co-registrar, the Company shall execute and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of any authorized denomination or
denominations of a like aggregate principal amount.


 


15

















 


At the option
of the Holder thereof, Securities may be exchanged for other Securities of any
authorized denomination or denominations, of a like aggregate principal amount,
upon surrender of the Securities to be exchanged, together with a written
instrument of transfer satisfactory to the Registrar duly executed by such
Holder or such Holder’s attorney duly authorized in writing, at the office or
agency of the Registrar or co-registrar. 
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
that the Holder making the exchange is entitled to receive.


 


The Company
shall not charge a service charge for any registration of transfer or exchange,
but the Company may require payment of a sum sufficient to pay all taxes,
assessments or other governmental charges that may be imposed in connection
with the transfer or exchange of the Securities from the Holder requesting such
transfer or exchange.


 


The Company
shall not be required to make, and the Registrar need not register, transfers
or exchanges of Securities selected for redemption (except, in the case of Securities
to be redeemed in part, the portion thereof not to be redeemed) or any
Securities in respect of which a Repurchase Notice or Change in Control
Repurchase Notice has been given and not withdrawn by the Holder thereof in
accordance with the terms of this Indenture (except, in the case of Securities
to be repurchased in part, the portion thereof not to be repurchased) or any
Securities for a period of 15 days before the mailing of a notice of redemption
to each Holder of Securities to be redeemed, as provided in Section 3.03.


 


(b)           Successive
registrations and registrations of transfers and exchanges as aforesaid may be
made from time to time as desired, and each such registration shall be noted on
the register for the Securities.


 


(c)           The
Registrar shall provide to the Trustee such information as the Trustee may
reasonably require in connection with the delivery by the Registrar of
Securities upon transfer or exchange of Securities.


 


(d)           The
Registrar shall not be required to make registrations of transfer or exchange
of Securities during any periods designated in the Securities or in this
Indenture as periods during which such registration of transfers and exchanges
need not be made.


 


(e)           Notwithstanding
any other provision of this Indenture or the Securities, until the expiration
of the applicable holding period set forth in Rule 144(k) of the Securities Act
(or any successor provision), the Securities may not be transferred or
exchanged in whole or in part other than (i) to a person whom the seller reasonably
believes is a qualified institutional buyer, as such term is


 


16

















 


defined in
Rule 144A (a “QIB”), in reliance
on Rule 144A, (ii) pursuant to an exemption from registration under the
Securities Act provided by Rule 144 thereunder (if available), (iii) pursuant
to an effective registration statement under the Securities Act or (iv) to the
Company or any of its Subsidiaries, in each of cases (i) through (iv) in
accordance with any applicable securities laws of any state of the United
States.  Whenever any Security is
presented or surrendered for registration of transfer or exchange for a
Security registered in a name other than that of the Holder thereof, such Security
must be accompanied by a certificate in substantially the form set forth in
Exhibit B, dated the date of such surrender and signed by the Holder of such
Security, as to compliance with such restrictions on transfer.  The Registrar shall not be required to
accept for such registration of transfer or exchange any Security not so
accompanied by a properly completed certificate.


 


Any
certificate evidencing a Security (and all securities issued in exchange
therefore or substitution thereof) shall bear the Transfer Restricted
Securities Legend, unless (1) such Security has been sold pursuant to a
registration statement that has been declared effective under the Securities
Act (and which continues to be effective at the time of such transfer) or
pursuant to Rule 144 under the Securities Act or any similar provision then in
force, (2) such Security is eligible for resale pursuant to Rule 144(k) under
the Securities Act (or any successor provision) or (3) otherwise agreed by the
Company in writing, with written notice thereof to the Trustee.


 


Every Security
that bears or is required under this Section 2.06(e) to bear the Transfer
Restricted Securities Legend (the “Transfer
Restricted Securities”) shall be subject to the restrictions on
transfer set forth in this Section 2.06(e) (including those set forth in the
Transfer Restricted Securities Legend) unless such restrictions on transfer
shall be waived by written consent of the Company, and the Holder of each such
Transfer Restricted Security, by such Security Holder’s acceptance thereof,
agrees to be bound by all such restrictions on transfer.  As used in this Section 2.06(e), the term “transfer” encompasses any sale, pledge,
loan, transfer or other disposition whatsoever of any Transfer Restricted
Security or any interest therein.


 


Any Security
(or Security issued in exchange or substitution therefor) as to which such
restrictions on transfer shall have expired in accordance with their terms or
as to conditions for removal of the Transfer Restricted Securities Legend have
been satisfied may, upon surrender of such Security for exchange to the
Registrar in accordance with the provisions of this Section 2.06, be exchanged
for a new Security or Securities, of like tenor and aggregate principal amount,
which shall not bear the Transfer Restricted Securities Legend.  If the Transfer Restricted Security
surrendered for exchange is represented by a Global Security bearing a Transfer
Restricted Securities Legend, the principal amount of the


 


17

















 


Global Security so legended shall be reduced
by the appropriate principal amount and the principal amount of a Global
Security without the Transfer Restricted Securities Legend shall be increased
by an equal principal amount.  If a Global
Security without the Transfer Restricted Securities Legend is not then
outstanding, the Company shall execute and the Trustee shall authenticate and
deliver a Global Security without the Transfer Restricted Securities Legend to
the Depositary.


 


Section 2.07.  Replacement Securities.   If any mutilated Security is
surrendered to the Trustee, or the Company and the Trustee receive evidence to
their satisfaction of the destruction, loss or theft of any Security, and there
is delivered to the Company and the Trustee such security or indemnity as may
be required by them to save each of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
protected purchaser (within the meaning of Section 8-303 of the Uniform
Commercial Code as adopted in the State of New York), the Company shall
execute, and upon the Company’s written request the Trustee shall authenticate
and deliver, in exchange for any such mutilated Security or in lieu of any such
destroyed, lost or stolen Security, a new Security of like tenor and principal
amount and bearing a number not contemporaneously outstanding.


 


In case any
such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, or is about to be redeemed or repurchased by the Company
pursuant to Article 3 hereof, the Company in its discretion may, instead of
issuing a new Security, pay, redeem or repurchase such Security, as the case
may be.


 


Upon the
issuance of any new Securities under this Section, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith.


 


Every new
Security issued pursuant to this Section in lieu of any mutilated, destroyed,
lost or stolen Security shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen
Security shall be at any time enforceable by anyone, and shall be entitled to
all benefits of this Indenture equally and proportionately with any and all
other Securities duly issued hereunder.


 


The provisions
of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities.


 


18

















 


Section 2.08.  Outstanding Securities;
Determinations of Holders’ Action.


 


Securities
outstanding at any time are all the Securities authenticated by the Trustee,
except for those cancelled by it, those delivered to it for cancellation
pursuant to Section 2.10 and those described in this Section 2.08 as not
outstanding.  A Security does not cease
to be outstanding because the Company or any Affiliate of the Company holds the
Security; provided that in
determining whether the Holders of the requisite principal amount of Securities
have given or concurred in any request, demand, authorization, direction,
notice, consent or waiver hereunder, Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or such other
obligor shall be disregarded and deemed not to be outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded; and provided
further that Securities that the Company or an Affiliate offers to
purchase or acquires pursuant to an offer, exchange offer, tender offer or
otherwise shall not be deemed to be owned by the Company or an Affiliate until
legal title to such Securities passes to the Company or such Affiliate, as the
case may be.  Subject to the foregoing,
only Securities outstanding at the time of such determination shall be
considered in any such determination (including determinations pursuant to
Articles 6 and 9).


 


If a Security
is replaced pursuant to Section 2.07, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Security is held by
a protected purchaser.


 


If the Paying
Agent holds, in accordance with this Indenture, prior to 11:00 a.m., New York City
Time, on a Redemption Date, or on the Business Day following a Repurchase Date
or a Change in Control Repurchase Date, or on Stated Maturity, money sufficient
to pay amounts owed with respect to Securities payable on that date, then
immediately after such Redemption Date, Repurchase Date, Change in Control
Repurchase Date or Stated Maturity, as the case may be, such Securities shall
cease to be outstanding and interest (including Additional Interest, if any) on
such Securities shall cease to accrue; provided
that if such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made.


 


If a Security
is converted in accordance with Article 10, then from and after the time of
conversion on the Conversion Date, such Security shall cease to be outstanding
and interest shall cease to accrue on such Security.


 


Section 2.09.  Temporary Securities.  Pending the preparation of definitive Securities, the
Company may execute, and upon Company Order the Trustee shall


 


19

















 


authenticate and deliver, temporary
Securities that are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued, and with such
appropriate insertions, omissions, substitutions and other variations as the
Officers executing such Securities may determine, as conclusively evidenced by
their execution of such Securities.


 


If temporary
Securities are issued, the Company will cause definitive Securities to be
prepared without unreasonable delay. 
After the preparation of definitive Securities, the temporary Securities
shall be exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for such purpose
pursuant to Section 2.03, without charge to the Holder.  Upon surrender for cancellation of any one
or more temporary Securities, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations.  Until so exchanged, the temporary Securities shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities.


 


Section 2.10.  Cancellation.  All
Securities surrendered for payment, redemption, repurchase, conversion,
exchange or registration of transfer shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be promptly cancelled
by it, or, if surrendered to the Trustee, shall be promptly cancelled by
it.  The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder that the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee.  The Company may not issue new
Securities to replace Securities it has paid or delivered to the Trustee for
cancellation or that any Holder has converted pursuant to Article 10.  No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture.  All cancelled Securities held by the Trustee shall be disposed of
by the Trustee in accordance with the Trustee’s customary procedures.


 


Section 2.11.  Persons Deemed Owners.  Prior to due presentment of a
Security for registration of transfer, the Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name such Security
is registered as the owner of such Security for the purpose of receiving
payment of the principal amount of the Security or the payment of any
Redemption Price, Repurchase Price or Change in Control Repurchase Price in
respect thereof, and accrued but unpaid interest (including Additional
Interest, if any) thereon, for the purpose of conversion and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.


 


20

















 


Section 2.12.  Global Securities.


 


(a)           Notwithstanding
any other provisions of this Indenture or the Securities, a Global Security
shall not be exchanged in whole or in part for a Security registered in the
name of any Person other than the Depositary, any successor Depositary or one
or more nominees thereof; provided
that a Global Security may be exchanged for Securities registered in the name
of any Person designated by the Depositary if 
(1) the Depositary has notified the Company that it is unwilling or
unable to continue as Depositary for such Global Security or such Depositary
has ceased to be a “clearing agency” registered under the Exchange Act, and a
successor Depositary is not appointed by the Company within 90 days, (2) the
Company has provided the Depositary with written notice that it has decided to
discontinue use of the system of book-entry transfer through the Depositary or
any successor Depositary or (3) an Event of Default has occurred and is
continuing with respect to the Securities, and the Depositary notifies the Trustee
that it elects to cause the issuance of Securities in definitive form.  Any Global Security exchanged pursuant to
clauses (1) or (2) above shall be so exchanged in whole and not in part, and
any Global Security exchanged pursuant to clause (3) above may be exchanged in
whole or from time to time in part as directed by the Depositary.  Any Security issued in exchange for a Global
Security or any portion thereof shall be a Global Security; provided that any such Security so issued
that is registered in the name of a Person other than the Depositary or a
nominee thereof shall not be a Global Security.


 


(b)           Securities
issued in exchange for a Global Security or any portion thereof shall be issued
in definitive, fully registered form, without interest coupons, shall have an
aggregate principal amount equal to that of such Global Security or portion
thereof to be so exchanged, shall be registered in such names and be in such
authorized denominations as the Depositary shall designate and shall bear the
applicable legends provided for herein. 
Any Global Security to be exchanged in whole shall be surrendered by the
Depositary to the Trustee, as Registrar. 
With regard to any Global Security to be exchanged in part, either such
Global Security shall be so surrendered for exchange or, if the Trustee is
acting as custodian for the Depositary or its nominee with respect to such
Global Security, the principal amount thereof shall be reduced by an amount
equal to the portion thereof to be so exchanged, by means of an appropriate
adjustment made on the records of the Trustee. 
Upon any such surrender or adjustment, the Trustee shall authenticate
and deliver the Security issuable on such exchange to or upon the order of the
Depositary or an authorized representative thereof.


 


(c)           Subject
to the provisions of Section 2.12(e), the registered Holder may grant proxies
and otherwise authorize any Person, including Agent Members (as defined below)
and Persons that may hold interests through Agent Members,


 


21

















 


to take any
action which a Holder is entitled to take under this Indenture or the
Securities.


 


(d)           If
any of the events specified in Section 2.12(a) occurs, the Company will
promptly make available to the Trustee a reasonable supply of Securities in
definitive form.


 


(e)           Neither
any members of, or participants in, the Depositary (collectively, the “Agent Members”) nor any other Persons on
whose behalf Agent Members may act shall have any rights under this Indenture
with respect to any Global Security registered in the name of the Depositary or
any nominee thereof, or under any such Global Security, and the Depositary or
such nominee, as the case may be, may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner and holder of
such Global Security for all purposes whatsoever.  Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Depositary or such nominee, as the case may be, or impair, as between the
Depositary, its Agent Members and any other Person on whose behalf an Agent
Member may act, the operation of customary practices of such Persons governing
the exercise of the rights of a holder of any Security.


 


(f)            With
respect to any Global Security, the Company, the Registrar and the Trustee
shall be entitled to treat the Person in whose name such Global Security is
registered as the absolute owner of such Security for all purposes of this
Indenture, and neither the Company, the Registrar nor the Trustee shall have
any responsibility or obligation to any Agent Members or other beneficial
owners of the Securities represented by such Global Security.  Without limiting the immediately preceding
sentence, neither the Company, the Registrar nor the Trustee shall have any
responsibility or obligation with respect to (1) the accuracy of the records of
the Depositary or any other Person with respect to any ownership interest in
any Global Security, (2) the delivery to any Person, other than a Holder, of
any notice with respect to the Securities represented by a Global Security,
including any notice of redemption or repurchase, (3) the selection of the
particular Securities or portions thereof to be redeemed or repurchased in the
event of a partial redemption or repurchase of part of the Securities
outstanding or (4) the payment to any Person, other than a Holder, of any amount
with respect to the principal of or Redemption Price, Repurchase Price, Change
in Control Repurchase Price or accrued but unpaid interest (including
Additional Interest, if any) with respect to any Global Security.


 


Section 2.13.  CUSIP Numbers. 
The Company may issue the Securities with one or more CUSIP
numbers (if then generally in use), and, if the Company so elects, the Trustee
shall use CUSIP numbers in notices of redemption as a


 


22

















 


convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on
the Securities, and any such redemption shall not be affected by any defect in
or omission of such numbers.  The
Company will promptly notify the Trustee in writing of any change in the CUSIP
numbers.


 


Section 2.14.  Designation.  The
Securities shall in all respects rank pari
passu with all other senior subordinated indebtedness of the
Company, including the Company’s existing 8 7/8% Senior Subordinated Notes due
2011, and shall rank senior to all existing and future Junior Securities of the
Company; and only indebtedness of the Company that constitutes Senior Debt of
the Company shall rank senior to the Securities in accordance with the
provisions set forth herein.


 


ARTICLE 3

REDEMPTION AND REPURCHASES


 


Section 3.01.  Right to Redeem; Notices to Trustee.


 


(a)           Optional Redemption.  On or after April 21, 2014, the Company, at
its option, may redeem the Securities in whole at any time or in part from time
to time, upon not less that 30 nor more than 60 days’ notice given as provided
herein, in any integral multiple of $1,000, for cash at a price equal to 100%
of the principal amount of the Securities to be redeemed (the “Redemption Price”), together with accrued
but unpaid interest (including Additional Interest, if any) thereon, up to but
not including the Redemption Date; provided
that if the Redemption Date is between the close of business on an interest
record date and the opening of business on the related interest payment date,
accrued but unpaid interest (including Additional Interest, if any) will be
payable to the Holders in whose names the Securities are registered at the
close of business on the relevant interest record date.


 


(b)           Notice
to Trustee.  If the Company elects
to redeem Securities pursuant to this Section 3.01, it shall notify the Trustee
in writing of the Redemption Date, the principal amount of Securities to be
redeemed and the Redemption Price.  The
Company shall give the notice to the Trustee provided for in this Section 3.01(b)
by a Company Order at least ten days before the date notice of redemption is to
be given to Holders pursuant to Section 3.03 (unless a shorter notice shall be
satisfactory to the Trustee).


 


Section 3.02.  Selection of Securities to Be
Redeemed.  If less than
all the Securities are to be redeemed, subject to the Applicable Procedures in
the case of


 


23

















 


Global Securities to be so redeemed, the
Trustee shall select the Securities to be redeemed by any method that the
Trustee deems fair and appropriate.  In
the event of a partial redemption, the Trustee may select for redemption
portions of the principal amount of Securities in principal amounts of $1,000
and integral multiples thereof.


 


Provisions of
this Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption. 
The Trustee shall notify the Company promptly of the Securities or
portions of Securities to be redeemed.


 


If any
Security selected for partial redemption is converted in part before
termination of the conversion right with respect to the portion of the Security
so selected, the converted portion of such Security shall be deemed (so far as
possible) to be the portion selected for redemption.  Securities that have been converted during a selection of
Securities to be redeemed may be treated by the Trustee as outstanding for the
purpose of such selection.


 


Section 3.03.  Notice of Redemption.  At least 30 days but not more than 60 days before any
Redemption Date, the Company shall mail a notice of redemption by first-class
mail, postage prepaid, to each Holder of Securities to be redeemed at such
Holder’s registered address.


 


The notice of
redemption shall identify the Securities to be redeemed and shall state:


 


(a)           the
Redemption Date;


 


(b)           the
Redemption Price and, to the extent known at the time of such notice the amount
of accrued but unpaid interest (including Additional Interest, if any) payable
on the Redemption Date;


 


(c)           the
current Conversion Price;


 


(d)           the
name and address of the Paying Agent and Conversion Agent;


 


(e)           that
Securities called for redemption may be converted at any time before the close
of business on the second Business Day immediately preceding the Redemption
Date;


 


(f)            that
Holders who want to convert Securities must satisfy the requirements set forth
in the Securities and Article 10 of this Indenture;


 


24

















 


(g)           that
Securities called for redemption must be surrendered to the Paying Agent in
order to collect the Redemption Price therefor, together with accrued but
unpaid interest (including Additional Interest, if any) thereon;


 


(h)           if fewer than all the
outstanding Securities are to be redeemed, the certificate numbers, if any, and
principal amounts of the particular Securities to be redeemed;


 


(i)            that, unless the
Company defaults in paying the Redemption Price, interest (including Additional
Interest, if any) on Securities called for redemption will cease to accrue on
and after the Redemption Date and the Securities called for redemption will
cease to be outstanding; and


 


(j)            the CUSIP number of
the Securities called for redemption.


 


At the
Company’s request, the Trustee shall give the notice of redemption in the
Company’s name and at the Company’s expense, so long as the Company makes such
request at least ten Business Days prior to the date by which such notice of
redemption is to be given to Holders in accordance with this Section 3.03 and
the Company provides the Trustee with all information required for such notice
of redemption.


 


If any of the
Securities are in the form of a Global Security, then the Company shall modify
such notice to the extent necessary to accord with the Applicable Procedures
that apply to the redemption of Global Securities.


 


Section 3.04.  Effect of Notice of Redemption.  Once notice of redemption is
given, Securities called for redemption become due and payable on the
Redemption Date and at the Redemption Price stated in the notice of redemption,
together with accrued but unpaid interest (including Additional Interest, if
any) thereon, except for Securities which are converted in accordance with the
terms of this Indenture.  Upon surrender
to the Paying Agent, Securities called for redemption shall be paid at the
Redemption Price stated in the notice of redemption, together with accrued but
unpaid interest (including Additional Interest, if any) thereon, up to but not
including the Redemption Date.


 


Section 3.05.  Deposit of Redemption Price.  Prior to 11:00 a.m. (New York
City time) on the Redemption Date, the Company shall deposit with the Paying
Agent (or if the Company or a Subsidiary thereof or an Affiliate of either of
them is the Paying Agent, shall segregate and hold in trust) money sufficient
to pay the aggregate Redemption Price of all Securities to be redeemed on the
Redemption Date, together with accrued but unpaid interest (including
Additional Interest, if any) thereon, up to but not including the Redemption
Date, other than Securities or portions of Securities called for redemption
that on or prior thereto have been delivered by the Company to the Trustee for
cancellation or have been


 


25

















 


converted pursuant to Article 10.  The Paying Agent shall as promptly as
practicable return to the Company any money not required for making payments on
the Redemption Date because of conversion of Securities pursuant to Article
10.  If such money is then held by the
Company in trust and is not required for making payments on the Redemption Date,
it shall be discharged from such trust.


 


Section 3.06.  Securities Redeemed in Part.  Upon surrender of a Security that
is redeemed in part, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder thereof, without service charge, a new
Security or Securities, of any authorized denomination as requested by such
Holder in aggregate principal amount equal to, and in exchange for, the
unredeemed portion of the principal amount of the Security surrendered.


 


Section 3.07.  Sinking Fund.  There
shall be no sinking fund provided for the Securities.


 


Section 3.08.  Repurchase of Securities at Option
of the Holder on Specified Dates.


 


(a)           At
the option of the Holder, the Company shall repurchase all or a portion of the
Securities held by such Holder on April 15, 2014 and April 15, 2019 (each, a “Repurchase Date”) for cash at a price per
Security equal to 100% of the aggregate principal amount of the Security (the “Repurchase Price”), together with accrued
but unpaid interest (including Additional Interest, if any) thereon, up to but
not including the Repurchase Date.


 


Securities shall be repurchased pursuant to this Section 3.08 at the
option of the Holder thereof upon:


 


(i)            delivery to the
Company and the Paying Agent by the Holder of a written notice (a “Repurchase Notice”) at any time from the
opening of business on the date that is 30 Business Days prior to the
Repurchase Date until the close of business on the Business Day prior to such
Repurchase Date stating:


 


(A)          if the Security which
the Holder will deliver to be repurchased is a Security in definitive form, the
certificate number of such Security, or if such Security is a Global Security,
the notice must comply with the Applicable Procedures;


 


(B)           the portion of the
principal amount of the Security which the Holder will deliver to be
repurchased, which portion must be in a principal amount of $1,000 or any
integral multiple thereof; and


 


26

















 


(C)           that such Security
shall be repurchased as of the Repurchase Date pursuant to the terms and
conditions specified in this Indenture; and


 


(ii)           delivery or book-entry
transfer of such Security to the Paying Agent prior to, on or after the
Repurchase Date (together with all necessary endorsements) at the offices of
the Paying Agent, such delivery being a condition to receipt by the Holder of
the Repurchase Price therefor, together with accrued but unpaid interest
(including Additional Interest, if any); provided
that the Repurchase Price, together with accrued but unpaid interest (including
Additional Interest, if any) thereon, shall be so paid pursuant to this Section
3.08 only if the Security so delivered to the Paying Agent shall conform in all
respects to the description thereof in the related Repurchase Notice.


 


The Company shall repurchase from the Holder thereof, pursuant to this
Section 3.08, a portion of a Security if the principal amount of such portion
is $1,000 or an integral multiple of $1,000. 
Provisions of this Indenture that apply to the repurchase of all of a
Security also apply to the repurchase of a portion of a Security.


 


Any repurchase
by the Company contemplated pursuant to the provisions of this Section 3.08
shall be consummated by the delivery to the Paying Agent of the Repurchase
Price, together with accrued but unpaid interest (including Additional
Interest, if any) thereon, to be received by the Holder promptly following the
later of the Repurchase Date and the time of delivery or book-entry transfer of
the Security to the Paying Agent in accordance with this Section 3.08.


 


Notwithstanding
anything herein to the contrary, any Holder delivering to the Paying Agent the
Repurchase Notice contemplated by this Section 3.08(a) shall not have the right
to withdraw such Repurchase Notice and such Repurchase Notice shall be
irrevocable.  The Company shall comply
with Rule 13-4, Rule 14e-1 and any other tender offer rules under the
Securities Exchange Act of 1934 which may then be applicable and file Schedule
TO (or any similar schedule) to the extent applicable at that time.


 


The Paying
Agent shall promptly notify the Company of the receipt by it of any Repurchase
Notice.


 


(b)           Company
Repurchase Notice.  In connection
with any repurchase of Securities pursuant to this Section 3.08, the Company
shall give written notice of the Repurchase Date to the Holders (the “Company Repurchase Notice”).  The Company Repurchase Notice shall be sent
by first-class mail to the Trustee and to each Holder not less than 30 Business
Days prior to any Repurchase Date.  Each


 


27

















 


Company
Repurchase Notice shall include a form of Repurchase Notice to be completed by
a Holder and shall state:


 


(i)            the Repurchase Price,
the Conversion Price and, to the extent known at the time of such notice, the
amount of accrued but unpaid interest (including Additional Interest, if any)
that will be payable with respect to the Securities on the Repurchase Date;


 


(ii)           the name and address of
the Paying Agent and the Conversion Agent;


 


(iii)          that Securities must be
surrendered to the Paying Agent to collect payment of the Repurchase Price and
accrued but unpaid interest (including Additional Interest, if any);


 


(iv)          that the Repurchase
Price for any Securities as to which a Repurchase Notice has been given,
together with accrued but unpaid interest (including Additional Interest, if
any) payable with respect thereto, shall be paid promptly following the later
of the Repurchase Date and the time of surrender of such Securities as
described in clause (iii);


 


(v)           the procedures the
Holder must follow under this Section 3.08;


 


(vi)          briefly, the conversion
rights of the Securities;


 


(vii)         that, unless the Company
defaults in making payment of such Repurchase Price, interest (including
Additional Interest, if any) on Securities covered by any Repurchase Notice
will cease to accrue on and after the Repurchase Date; and


 


(viii)        the CUSIP number of the
Securities.


 


At the Company’s request, which shall be made at least ten Business
Days prior to the date by which the Company Repurchase Notice is to be given to
the Holders in accordance with this Section 3.08, and at the Company’s expense,
the Trustee shall give the Company Repurchase Notice in the Company’s name; provided that, in all cases, the text of
the Company Repurchase Notice shall be prepared by the Company.


 


If any of the Securities are in the form of a Global Security, then the
Company shall modify such notice to the extent necessary to accord with the
Applicable Procedures that apply to the repurchase of Global Securities.


 


28

















 


Section
3.09.  Repurchase
of Securities at Option of the
Holder Upon Change in Control.


 


(a)           If
at any time that Securities remain outstanding there shall have occurred a
Change in Control, Securities shall be repurchased by the Company, at the
option of the Holder thereof, subject to the terms and conditions of this
Indenture, at a price in cash (the “Change in
Control Repurchase Price”) equal to 100% of the aggregate principal
amount of such Securities plus accrued but unpaid interest (including
Additional Interest, if any) thereon, up to but not including the date (the “Change in Control Repurchase Date”) fixed
by the Company that is not less than 30 days nor more than 45 days after the
date the Company Change in Control Repurchase Notice (as defined below) is
given, subject to satisfaction by or on behalf of the Holder of the
requirements set forth in Section 3.09(c); provided
that if the Change in Control Repurchase Date is between the close of business
on an interest record date and the opening of business on the related interest
payment date, accrued but unpaid interest (including Additional Interest, if
any) will be payable to the Holders in whose names the Securities are
registered at the close of business on the relevant interest record date.


 


(b)           Company Change in Control Repurchase Notice.  In connection with any repurchase of
Securities pursuant to this Section 3.09, the Company shall give written notice
of the occurrence of a Change in Control, the repurchase right arising as a
result thereof and the Change in Control Repurchase Date to the Holders (the “Company Change in Control Repurchase Notice”).  The Company Change in Control Repurchase
Notice shall be sent by first-class mail to the Trustee and to each Holder not
more than 20 Business Days after the occurrence of a Change in Control.  Each Company Change in Control Repurchase
Notice shall include a form of Change in Control Repurchase Notice to be
completed by a Holder and shall state:


 


(i)            the Change in Control
Repurchase Price, the Conversion Price and, to the extent known at the time of
such notice, the amount of accrued but unpaid interest (including Additional
Interest, if any) that will be payable with respect to the Securities on the
Change in Control Repurchase Date;


 


(ii)           the name and address of
the Paying Agent and the Conversion Agent;


 


(iii)          that Securities as to
which a Change in Control Repurchase Notice has been given may be converted
only if such Change in Control Repurchase Notice has been withdrawn in
accordance with the terms of this Indenture;


 


29

















 


(iv)          that Securities must be
surrendered to the Paying Agent to collect payment of the Change in Control
Repurchase Price and accrued but unpaid interest (including Additional
Interest, if any);


 


(v)           that the Change in
Control Repurchase Price for any Securities as to which a Change in Control
Repurchase Notice has been given and not withdrawn, together with any accrued
but unpaid interest (including Additional Interest, if any) payable with
respect thereto, shall be paid promptly following the later of the Change in
Control Repurchase Date and the time of surrender of such Securities as described
in clause (iv);


 


(vi)          the procedures the
Holder must follow under this Section 3.09;


 


(vii)         briefly, the conversion
rights of the Securities;


 


(viii)        that, unless the Company
defaults in making payment of such Change in Control Repurchase Price, interest
(including Additional Interest, if any) on Securities covered by any Change in
Control Repurchase Notice will cease to accrue on and after the Change in
Control Repurchase Date;


 


(ix)           the CUSIP number of the
Securities; and


 


(x)            the procedures for withdrawing
a Change in Control Repurchase Notice (as specified in Section 3.10).


 


At the
Company’s request, which shall be made at least ten Business Days prior to the
date by which the Company Change in Control Repurchase Notice is to be given to
the Holders in accordance with this Section 3.09 and at the Company’s expense,
the Trustee shall give the Company Change in Control Repurchase Notice in the
Company’s name; provided that, in
all cases, the text of the Company Change in Control Repurchase Notice shall be
prepared by the Company.


 


If any of the
Securities is in the form of a Global Security, then the Company shall modify
such notice to the extent necessary to accord with the Applicable Procedures
that apply to the repurchase of Global Securities.


 


(c)           For
a Security to be so repurchased at the option of the Holder upon a Change in
Control, the Paying Agent must receive such Security with the form entitled
“Option to Elect Repurchase Upon a Change in Control” (a “Change in Control Repurchase Notice”) on
the reverse thereof duly completed, together with such Security duly endorsed
for transfer, on or before the close of business


 


30

















 


on the
Business Day prior to the Change in Control Repurchase Date.  All questions as to the validity,
eligibility (including time of receipt) and acceptance of any Security for
repurchase shall be determined by the Company, whose determination shall be
final and binding.


 


The Company
shall repurchase from the Holder thereof, pursuant to this Section 3.09, a
portion of a Security if the principal amount of such portion is $1,000 or an
integral multiple of $1,000.  Provisions
of this Indenture that apply to the repurchase of all of a Security also apply
to the repurchase of a portion of a Security.


 


Any repurchase
by the Company contemplated pursuant to the provisions of this Section 3.09
shall be consummated by the delivery to the Paying Agent of the Change in
Control Repurchase Price, together with accrued but unpaid interest (including
Additional Interest, if any) thereon, to be received by the Holder promptly
following the later of the Change in Control Repurchase Date and the time of
delivery or book-entry transfer of the Security to the Paying Agent in
accordance with this Section 3.09.


 


Notwithstanding
anything herein to the contrary, any Holder delivering to the Paying Agent the
Change in Control Repurchase Notice contemplated by this Section 3.09(c) shall
have the right to withdraw such Change in Control Repurchase Notice at any time
prior to the close of business on the Change in Control Repurchase Date by
delivery of a written notice of withdrawal to the Paying Agent at the principal
office of the Paying Agent in accordance with Section 3.10.


 


The Paying
Agent shall promptly notify the Company of the receipt by it of any Change in
Control Repurchase Notice or written withdrawal thereof.


 


Notwithstanding
anything herein to the contrary, the Company’s obligations pursuant to this
Section 3.09 shall be satisfied if a third party makes an offer to repurchase
outstanding Securities after a Change in Control in the manner and at the times
and otherwise in compliance in all material respects with the requirements of
this Section 3.09 and such third party purchases all Securities properly
tendered and not withdrawn pursuant to the requirements of this Section 3.09.


 


(d)           Not
more than 30 days after the occurrence of a Change in Control, the Company
shall use its reasonable best efforts to either (i) obtain the consents under
all existing indebtedness required to permit the repurchase of the Securities
pursuant to any Company Change in Control Repurchase Notice or (ii) repay in
full all existing indebtedness and terminate all commitments under all existing


 


31

















 


indebtedness,
in each case the terms of which would prohibit the repurchase of the Securities
pursuant to any Company Change in Control Repurchase Notice.


 


Section 3.10.  Effect of Change in Control
Repurchase Notice.  Upon
receipt by the Paying Agent of a Repurchase Notice or Change in Control
Repurchase Notice, the Holder of the Security in respect of which such
Repurchase Notice or Change in Control Repurchase Notice, as the case may be,
was given shall (unless such Repurchase Notice or Change in Control Repurchase
Notice is withdrawn as specified in the following two paragraphs) thereafter be
entitled to receive solely the Repurchase Price or Change in Control Repurchase
Price, together with accrued but unpaid interest (including Additional
Interest, if any) thereon, to but not including the Repurchase Date or Change
in Control Repurchase Date, as the case may be, with respect to such
Security.  Such Repurchase Price or
Change in Control Repurchase Price, together with accrued but unpaid interest
(including Additional Interest, if any) thereon, to but not including the
Repurchase Date or Change in Control Repurchase Date, as the case may be, shall
be paid to such Holder, subject to receipt of funds by the Paying Agent,
promptly following the later of (x) the Repurchase Date or the Change in
Control Repurchase Date, as the case may be, with respect to such Security (provided that the conditions in Section
3.08 or Section 3.09, as applicable, have been satisfied) and (y) the time of surrender
or book-entry transfer of such Security to the Paying Agent by the Holder
thereof in the manner required by Section 3.08 or Section 3.09(c), as
applicable.  Securities in respect of
which a Change in Control Repurchase Notice has been given by the Holder
thereof may not be converted pursuant to Article 10 hereof on or after the date
of the delivery of such Change in Control Repurchase Notice, unless such Change
in Control Repurchase Notice has first been validly withdrawn as specified in
the following two paragraphs.


 


A Change in
Control Repurchase Notice may be withdrawn by means of a written notice of
withdrawal delivered to the office of the Paying Agent in accordance with the
Change in Control Repurchase Notice at any time prior to the close of business
on the Change in Control Repurchase Date specifying:


 


(i)            if the Security with
respect to which such notice of withdrawal is being submitted is a Security in
definitive form, the certificate number of such Security, or if such Security
is a Global Security, the notice must comply with the Applicable Procedures;


 


(ii)           the principal amount of
the Security with respect to which such notice of withdrawal is being
submitted; and


 


32

















 


(iii)          the principal amount, if
any, of such Security which remains subject to the original Change in Control
Repurchase Notice and which has been or will be delivered for repurchase by the
Company.


 


There shall be
no repurchase of any Securities pursuant to Section 3.08 or Section 3.09 or
redemption pursuant to Section 3.01 if an Event of Default (other than a
default in the payment of the Redemption Price, Repurchase Price or Change in
Control Repurchase Price, as the case may be) has occurred prior to, on or
after, as the case may be, the giving by the Holders of such Securities of the
required Repurchase Notice or Change in Control Repurchase Notice, or the
giving by the Company of the notice of redemption, as the case may be, and such
Event of Default is continuing.  The Paying
Agent will promptly return to the respective Holders thereof any Securities (x)
with respect to which a Change in Control Repurchase Notice has been withdrawn
in compliance with this Indenture, or (y) held by it during the continuance of
an Event of Default (other than a default in the payment of the Repurchase
Notice or Change in Control Repurchase Price) in which case, upon such return,
the Repurchase Notice or Change in Control Repurchase Notice with respect
thereto shall be deemed to have been withdrawn.


 


Section 3.11.  Deposit of Repurchase Price or Change
in Control Repurchase Price.   Prior
to 11:00 a.m. (New York City time) on the Business Day immediately following
the Repurchase Date or the Change in Control Repurchase Date, as the case may
be, the Company shall deposit with the Trustee or with the Paying Agent (or, if
the Company or a Subsidiary thereof or an Affiliate of either of them is acting
as the Paying Agent, shall segregate and hold in trust as provided in Section
2.04) an amount of money (in immediately available funds if deposited on such
Business Day) sufficient to pay the aggregate Repurchase Price or Change in
Control Repurchase Price, as the case may be, together with accrued but unpaid
interest (including Additional Interest, if any) thereon, to but not including
the Repurchase Date or Change in Control Repurchase Date, as the case may be,
of all the Securities or portions thereof which are to be repurchased as of the
Repurchase Date or Change in Control Repurchase Date, as the case may be.


 


Section 3.12.  Securities Repurchased in Part.  Any Security in definitive form
that is to be repurchased only in part shall be surrendered at the office of
the Paying Agent (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or such Holder’s
attorney duly authorized in writing) and the Company shall execute and the
Trustee shall promptly authenticate and deliver to the Holder of such Security,
without service charge, one or more new Securities in definitive form, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to,


 


33

















 


and in exchange for, the portion of the
principal amount of the Security in definitive form so surrendered which is not
repurchased.


 


Section 3.13.  Covenant to Comply with Securities
Laws upon Repurchase of Securities. 
When complying with the provisions of Sections 3.08 or 3.09
hereof (so long as such offer or repurchase constitutes an “issuer tender
offer” for purposes of Rule 13e-4 (which term, as used herein, includes any
successor provision thereto) under the Exchange Act at the time of such offer
or repurchase), the Company shall (i) comply in all material respects with Rule
13e-4 and Rule 14e-1 under the Exchange Act, (ii) file the related Schedule TO
(or any successor schedule, form or report) under the Exchange Act and (iii)
otherwise comply in all material respects with all applicable provisions of
federal and state securities laws and any provisions of this Indenture which
conflict with such laws shall be deemed to be superseded by the provisions of
such laws.


 


Section 3.14.  Repayment to the Company.  To the extent that the aggregate
amount of cash deposited by the Company pursuant to Section 3.11 exceeds the
aggregate Repurchase Price or Change in Control Repurchase Price, as the case
may be, of the Securities or portions thereof which the Company is obligated to
repurchase as of the Repurchase Date or Change in Control Repurchase Date, as
the case may be, together with accrued but unpaid interest (including
Additional Interest, if any) thereon, then, unless otherwise agreed in writing
with the Company, promptly after the Business Day following the Repurchase Date
or Change in Control Repurchase Date, as the case may be, the Trustee shall
return any such excess to the Company together with interest, if any, thereon
(subject to the provisions of Section 7.01(f)).


 


Section 3.15.  Redemption Pursuant to Gaming Laws.  If a Holder or a beneficial owner
of a Security is required by any Gaming Authority to be found suitable to hold
the Securities, the Holder shall apply for a finding of suitability within 30
days after a Gaming Authority request or sooner if so required by such Gaming
Authority.  The applicant for a finding
of suitability must pay all costs of the investigation for such finding of
suitability.  If a Holder or beneficial
owner is required to be found suitable to hold the Securities and is not found
suitable by a Gaming Authority, the Holder shall, to the extent required by
applicable law, dispose of his Securities within 30 days or within that time
prescribed by a Gaming Authority, whichever is earlier.  If the Holder fails to dispose of his
Securities within such time period, the Company may, at its option, redeem such
Holder’s Securities (a “Required Regulatory
Redemption”) at, depending on applicable law, (i) the principal
amount thereof, together with accrued and unpaid interest (and Additional
Interest, if any) to the date of the finding of unsuitability by a Gaming
Authority, (ii) the amount that such Holder paid for the Securities, (iii) the
lowest of clauses (i) and (ii), or (iv) such other amount as may be determined
by the appropriate Gaming Authority.


 


34

















 


Section 3.16 Optional Tax
Redemption.  The Securities may be redeemed at
the option of the Company, in whole but not in part, upon not less than 30 nor
more than 60 days’ notice given as provided herein, at any time at a redemption
price equal to the principal amount thereof, plus accrued and unpaid interest,
if any, thereon, plus Additional Interest, if any, to the date fixed for
redemption if, as a result of any change in or amendment to the laws, treaties,
rulings or regulations of The Bahamas, or of any political subdivision or
taxing authority thereof or therein, or any change in the official position of
the applicable taxing authority regarding the application or interpretation of
such laws, treaties, rulings or regulations (including a holding, judgment or
order of a court of competent jurisdiction) or any execution thereof or
amendment thereto, which is enacted into law or otherwise becomes effective
after the Issue Date, the Company is or would be required on the next
succeeding interest payment date to pay Additional Amounts on the Securities as
a result of the imposition of a Bahamian tax and the payment of such Additional
Amounts cannot be avoided by the use of any reasonable measures available to
the Company which does not cause it to incur any material costs. The Company
also shall pay to Holders on the Redemption Date any Additional Amounts then
due and which will become due as a result of the redemption or would otherwise
be payable.


 


Prior to the
publication of any notice of redemption in accordance with the foregoing, the
Company shall deliver to the Trustee an Officer’s Certificate stating that (i)
the payment of Additional Amounts cannot be avoided by the use of any
reasonable measures available to the Company which do not cause it to incur any
material costs and (ii) the Company is entitled to effect such redemption based
on the written, substantially unqualified Opinion of Counsel, which counsel
shall be reasonably acceptable to the Trustee, that the Company has or will
become obligated to pay Additional Amounts as a result of such change or
amendment. The notice, once delivered by the Company to the Trustee, will be
irrevocable.


 


ARTICLE 4

COVENANTS


 


Section 4.01.  Payment of Securities.  The Company shall promptly make
all payments in respect of the Securities on the dates and in the manner
provided in the Securities or pursuant to this Indenture.  Any amounts to be given to the Trustee or
Paying Agent, as the case may be, shall be deposited with the Trustee or Paying
Agent, as the case may be, by 11:00 a.m. (New York City time), on the dates
required pursuant to Section 2.04 hereof. 
Interest installments, Additional Interest, principal amount, Redemption
Price, Repurchase Price, Change in Control Repurchase Price and interest, if
any, due on overdue amounts shall be considered paid on the applicable date due
if at 11:00 a.m. (New York City time)


 


35

















 


on such date, the Trustee or the Paying
Agent, as the case may be, holds, in accordance with this Indenture, money
sufficient to pay all such amounts then due.


 


The Company
shall, to the extent permitted by law, pay interest on overdue amounts at the
rate per annum set forth in paragraph 1 of the Securities, compounded
semi-annually, which interest shall accrue from the date such overdue amount
was originally due to the date payment of such amount, including interest thereon,
has been made or duly provided for.  The
accrual of such interest on overdue amounts shall be in addition to the
continued accrual of interest on the Securities.


 


Section 4.02.  SEC and Other Reports.  Whether or not the Company is subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, the Company shall
deliver to the Trustee and to each Holder within 15 days after it is or would
have been (if it were subject to such reporting obligations) required to
furnish such with the SEC, annual and quarterly financial statements
substantially equivalent to financial statements that would have been included
in reports filed with the SEC, if the Company were subject to the requirements
of Section 13 or 15(d) of the Exchange Act, including, with respect to annual
information only, a report thereon by the Company’s certified independent
public accountants as such would be required in such reports to the SEC, and,
together with a management’s discussion and analysis of financial condition and
results of operations which would be so required and, to the extent permitted
by the Exchange Act or the SEC, file with the SEC the annual, quarterly and
other reports which it is or would have (if it were subject to such reporting
obligations) been required to file with the SEC.  Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee’s receipt of such
shall not constitute constructive notice of any information contained therein
or determinable from information contained therein, including the Company’s
compliance with any of their covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers’ Certificates).


 


Section 4.03.  Compliance Certificate; Notice of
Default.


 


(a)           The
Company shall deliver to the Trustee within 120 days after the end of its
fiscal year an Officers’ Certificate, one of the signers of which shall be the
principal executive, financial or accounting officer of the Company, complying
(whether or not required) with Section 314(a)(4) of the TIA and stating that a
review of its activities and the activities of its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations (without regard to notice requirements
or grace periods) under this Indenture and further stating, as to each such
Officer signing


 


36

















 


such
certificate, whether or not the signer knows of any failure by the Company or
any Subsidiary of the Company to comply with any conditions or covenants in
this Indenture and, if such signer does know of such a failure to comply, the
certificate shall describe such failure with particularity.  The Officers’ Certificate shall also notify
the Trustee should the relevant fiscal year end on any date other than the
current fiscal year end date.


 


(b)           The
Company shall, so long as any of the Securities are outstanding, deliver to the
Trustee promptly, and in any event within 30 days after becoming aware of any
Default or Event of Default under this Indenture, an Officers’ Certificate
specifying such Default or Event of Default and what action the Company is taking
or proposes to take with respect thereto. 
The Trustee shall not be deemed to have knowledge of a Default or Event
of Default unless one of its Responsible Officers receives written notice of
the Default or Event of Default from the Company or any of the Holders.


 


Section 4.04.  Maintenance of Office or Agency.  The Company will maintain in the
Borough of Manhattan, The City of New York, an office or agency of the Trustee,
Registrar, Paying Agent and Conversion Agent where Securities may be presented
or surrendered for payment, where Securities may be surrendered for
registration of transfer, exchange, repurchase, redemption or conversion and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served.  The
Corporate Trust Office, shall initially be such office or agency where
Securities may be surrendered for payment, and the Corporate Trust Office shall
initially be such office or agency for all of the other aforesaid purposes.  The Company shall give prompt written notice
to the Trustee of the location, and of any change in the location, of any such
office or agency (other than a change in the location of the office or agency
of the Trustee).  If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the address of the Trustee set
forth in Section 12.02.  The Company may
also from time to time designate one or more other offices or agencies where
the Securities may be presented or surrendered for any or all such purposes,
and may from time to time rescind such designations; provided that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain at least one Paying
Agent having an office or agency in the Borough of Manhattan, The City of New
York.


 


Section 4.05.  Delivery of Certain Information.  At any time prior to the date
that is two years after the Issue Date, when the Company is not subject to
Section 13 or 15(d) of the Exchange Act, upon the request of a Holder or any
Beneficial Owner of Securities or holder or Beneficial Owner of Ordinary Shares
delivered upon conversion thereof, the Company will promptly furnish or cause
to


 


37

















 


be furnished Rule 144A Information (as
defined below) to such Holder or any Beneficial Owner of Securities or holder
or Beneficial Owner of Ordinary Shares delivered upon conversion thereof or to
a prospective purchaser of any such security designated by any such holder, as
the case may be, to the extent required to permit compliance by such Holder or
holder with Rule 144A under the Securities Act in connection with the resale of
any such security.  “Rule 144A Information” shall be such
information as is specified pursuant to Rule 144A(d)(4) under the Securities
Act or any successor provisions. 
Whether a Person is a Beneficial Owner shall be determined by the
Company to the Company’s reasonable satisfaction.


 


Section 4.06.  Additional Interest.  If at any time Additional Interest becomes payable by
the Company pursuant to the Registration Rights Agreement, the Company shall
promptly deliver to the Trustee a certificate to that effect stating (i) the
amount of such Additional Interest that is payable and (ii) the date on which
such Additional Interest is payable pursuant to the terms of the Registration
Rights Agreement.  Unless and until a
Responsible Officer of the Trustee receives such a certificate, the Trustee may
assume without inquiry that no Additional Interest is payable.  If the Company has paid Additional Interest
directly to the Persons entitled to it, the Company shall deliver to the
Trustee a certificate setting forth the particulars of such payment.


 


Section
4.07.  Additional Amounts.  The Company will, subject to the limitations
and exceptions set forth below, pay to each Holder such amounts (the “Additional Amounts”) as may be necessary in
order that every net payment or deemed payment of (i) principal, premium,
Additional Interest and interest, if any, with respect to a Security, or (ii)
net proceeds on the sale, redemption, repurchase, conversion or exchange of a
Security, each after deduction or withholding for or on account of any taxes,
duties, assessments or governmental charges of whatever nature imposed or
levied by or on behalf of the government of The Bahamas or any authority
thereof or therein having power to tax, will result in the receipt by the Holders
of the amounts that would have been received by them had no such deduction or
withholding been required; provided, however, that no such Additional Amounts
shall be payable in respect of any Security for:


 


(1)           any
tax, duty, levy, assessment, or other governmental charge which would not have
been imposed but for the fact that such Holder:


 


(a)  is a resident, domiciliary or national of,
or engaged in business or maintains a permanent establishment or was physically
present in, The Bahamas or any political subdivision thereof or therein or
otherwise has some connection with The Bahamas other than the mere ownership
of, or receipt of payment under, such Security;


 


38

















 


(b)  presented such Security for payment in The
Bahamas or any political subdivision thereof or therein, unless such Note could
not have been presented for payment elsewhere; or


 


(c)  presented such Security for payment more
than 30 days after the date on which the payment in respect of such Security
became due and payable or provided for, whichever is later, except to the
extent that the Holder would have been entitled to such Additional Amounts if
it had presented such Security for payment on any day within such period of 30
days;


 


(2)           any estate,
inheritance, gift, sales, transfer, or similar tax, assessment or other
governmental charge or any taxes, duties, levies, assessments or other
governmental charges that are payable otherwise than by deduction or
withholding from payments on the Securities;


 


(3)           any tax, duty, levy,
assessment, or other governmental charge imposed on a Holder that is not the
beneficial owner of a Security to the extent that the beneficial owner would
not have been entitled to the payment of Additional Amounts had the beneficial
owner directly held the Security; or


 


(4)           any combination of
items (1), (2) and (3).


 


Whenever there
is mentioned herein in any context, the payment of the principal of or any
premium or interest on, or Additional Interest, if any, or in respect of, any
Security or the net proceeds received on the sale, redemption, repurchase,
conversion or exchange of any Security, such mention shall be deemed to include
mention of the payment of Additional Amounts provided for in this Indenture to
the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof pursuant to this Indenture.


 


Without
limiting a Holder’s right to receive payment of Additional Amounts, in the
event that Additional Amounts actually paid with respect to the Securities are
based on rates of deduction or withholding of Bahamian taxes in excess of the
appropriate rate applicable to the Holder of such Securities and, as a result
thereof, such Holder of Securities is entitled to make a claim for a refund or
credit of such excess, then such Holder of Securities shall, by accepting the
Securities and receiving a payment of Additional Amounts, be deemed to have
assigned and transferred all right, title and interest to any such claim for a
refund or credit of such excess to the Company.  By making such assignment, the Holder of Securities makes no
representation or warranty that the Company will be entitled to receive such
claim for a refund or credit and incurs no other obligation with respect
thereto.


 


39

















 


ARTICLE 5

SUCCESSOR CORPORATION


 


Section 5.01.  When the Company May Consolidate,
Merge or Transfer Assets.  The
Company shall not consolidate or merge with or into (whether or not the Company
is the surviving person) another Person or sell, lease exchange or otherwise
transfer (in one transaction or a series of related transactions) all or
substantially all of its properties and assets to any other Person, unless:


 


(a)           (i)
the Company shall be the resulting or surviving corporation, or the successor,
transferee or lessee, if other than the Company, is a corporation, limited
partnership, limited liability company or other business entity organized and
validly existing under the laws of the Commonwealth of The Bahamas, any member
country of the European Union, Canada or the United States, any state thereof
or the District of Columbia and expressly assumes the obligations of the
Company under the Indenture and the Securities by means of a supplemental
indenture entered into with the Trustee; and


 


(b)           immediately
after giving effect to the transaction, no Event of Default and no event that,
with notice or lapse of time, or both, would constitute an Event of Default,
shall have occurred and be continuing.


 


For purposes of the foregoing, the transfer (by lease, assignment, sale
or otherwise) of the properties and assets of one or more Subsidiaries (other
than to the Company or another Subsidiary of the Company), which, if such
assets were owned by the Company would constitute all or substantially all of
the properties and assets of the Company, shall be deemed to be the transfer of
all or substantially all of the properties and assets of the Company.  The successor Person formed by such
consolidation or into which the Company is merged or the successor Person to
which such sale, lease, exchange or other transfer is made shall succeed to,
and (except in the case of a lease) be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as if
such successor had been named as the Company herein; and thereafter, except in
the case of a lease and except for obligations the Company may have under a
supplemental indenture pursuant to Section 9.06, the Company shall be discharged
from all obligations and covenants under this Indenture and the
Securities.  Subject to Section 9.06,
the Company, the Trustee and the successor Person shall enter into a
supplemental indenture to evidence the succession and substitution of such
successor Person and such discharge and release of the Company, as applicable.


 


40

















 


ARTICLE 6

DEFAULTS AND REMEDIES


 


Section 6.01.  Events of Default. 
An “Event of Default,”
wherever used herein, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be caused voluntarily or
involuntarily or effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):


 


(1)  the failure by the Company
to pay any installment of interest or Additional Interest, if any, on the
Securities as and when the same becomes due and payable and the continuance of
any such failure for 30 days;


 


(2)  the failure by the Company to pay all or any
part of the principal, or premium, if any, on the Securities when and as the
same becomes due and payable at maturity, redemption, by acceleration or
otherwise, whether or not prohibited by Article 11 hereof, including the
failure to make cash payments due upon conversion, or make a payment of the
Change in Control Repurchase Price or the failure to repurchase notes at the
option of the Holder on April 15, 2014 and 2019.


 


(3)  the failure by Company otherwise to comply
with Sections 3.09 and 5.01 including failure to provide notice of the
occurrence of a Change of Control in accordance with the terms of this
Indenture;


 


(4)  failure by the Company or any of its
Subsidiaries to observe or perform any other covenant or agreement contained in
the Indenture (except as provided in clauses (1), (2) and (3) above) and the
continuance of such failure for a period of 60 days after written notice is
given to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in aggregate principal amount of the Securities
outstanding;


 


(5)  a decree, judgment, or order by a court of
competent jurisdiction shall have been entered adjudicating the Company or any
of its Significant Subsidiaries as bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization of the Company or any of its
Significant Subsidiaries under any bankruptcy or similar law, and such decree
or order shall have continued undischarged and unstayed for a period of 60
consecutive days; or a decree or order of a court of competent jurisdiction,
judgment appointing a receiver, liquidator, trustee, or assignee in bankruptcy
or insolvency for the Company, any of its Significant Subsidiaries, or any
substantial part of the property of any such person, or for the winding up or
liquidation of the affairs of any such person, shall


 


41

















 


have been entered, and such decree, judgment,
or order shall have remained in force undischarged and unstayed for a period of
60 days;


 


(6)  the Company or any of its
Significant Subsidiaries shall institute proceedings to be adjudicated a
voluntary bankrupt, or shall consent to the filing of a bankruptcy proceeding
against it, or shall file a petition or answer or consent seeking
reorganization under any bankruptcy or similar law or similar statute, or shall
consent to the filing of any such petition, or shall consent to the appointment
of a custodian, receiver, liquidator, trustee, or assignee in bankruptcy or
insolvency of it or any substantial part of its assets or property, or shall
make a general assignment for the benefit of creditors, or shall admit in
writing its inability to pay its debts as they become due;


 


(7)  a default in indebtedness
of the Company or any of its Subsidiaries with an aggregate principal amount in
excess of $10 million (a) resulting from the failure to pay any principal at
final stated maturity or (b) as a result of which the maturity of such
indebtedness has been accelerated prior to its stated maturity; and


 


(8)  final unsatisfied judgments not covered by
insurance aggregating in excess of $10 million, at any one time rendered
against the Company or any of its Subsidiaries and either (a) the commencement
by any creditor of any enforcement proceeding upon any such judgment that is
not promptly stayed or (b) such judgment is not stayed, bonded or discharged
within 60 days.


 


Section 6.02.  Acceleration.


 


(a)           If
an Event of Default (other than an Event of Default specified in clause (5) or
(6) of Section 6.01) shall occur and be continuing, the Trustee may, and at the
written request of the Holders of at least 25% in principal amount of
outstanding Securities shall, declare the principal of and accrued but unpaid interest
(including Additional Interest, if any) on all the Securities to be due and
payable by notice in writing to the Company (the “Acceleration Notice”). 
Such notice shall specify the respective Event of Default and that it is
a “notice of acceleration.”  Upon the
giving of an Acceleration Notice, the principal of and accrued but unpaid
interest (including Additional Interest, if any) on all the Securities shall
become immediately due and payable.  If
an Event of Default specified in clause (5) or (6) of Section 6.01 occurs and
is continuing, then all unpaid Obligations on all of the outstanding Securities
shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.


 


(b)           At
any time after a declaration of acceleration with respect to the Securities as
described in the preceding paragraph, the Holders of a majority in


 


42

















 


aggregate
principal amount of the Securities at the time outstanding may rescind and
cancel such declaration and its consequences (i) if the rescission would not
conflict with any judgment or decree, (ii) if all existing Events of Default
have been cured or waived except nonpayment of principal or interest that has
become due solely because of such acceleration, (iii) if interest on overdue
installments of interest (to the extent the payment of such interest is lawful)
and on overdue principal, which has become due otherwise than by such
declaration of acceleration, has been paid, (iv) if the Company has paid the
Trustee its reasonable compensation and reimbursed the Trustee for its
expenses, disbursements and advances and (v) in the event of the cure or waiver
of an Event of Default of the type described in clause (4) of Section 6.01, the
Trustee shall have received an Officers’ Certificate and an Opinion of Counsel
that such Event of Default has been cured or waived.  No such rescission shall affect any subsequent Event of Default
or impair any right consequent thereto.


 


Section 6.03.  Other Remedies.  
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of the principal amount
of all the Securities plus accrued but unpaid interest (including Additional Interest,
if any) thereon, or to enforce the performance of any provision of the
Securities or this Indenture.


 


The Trustee
may maintain a proceeding even if the Trustee does not possess any of the
Securities or does not produce any of the Securities in the proceeding.  No remedy is exclusive of any other
remedy.  All available remedies are
cumulative to the extent permitted by law.


 


Section 6.04.  Waiver of Past Defaults.  The Holders of a majority in
aggregate principal amount of the Securities at the time outstanding, by notice
in writing to the Trustee (and without notice to any other Holder), may waive
an existing Event of Default and its consequences, except (i) an Event of
Default described in Section 6.01(1) or 6.01(2), (ii) an Event of Default in respect
of a provision that under Section 9.02 cannot be amended without the consent of
each Holder affected or (iii) an Event of Default which constitutes a failure
to convert any Security in accordance with the terms of Article 10.  When an Event of Default is waived, it is
deemed to have been cured, but no such waiver shall extend to any subsequent or
other Event of Default or impair any consequent right.  A delay or omission by the Trustee or any
Holder in exercising any right or remedy accruing upon an Event of Default
shall not impair the right or remedy or constitute a waiver of, or acquiescence
in, the Event of Default.  This Section
6.04 shall be in lieu of Section 316(a)(1)(B) of the TIA and such Section 316(a)(1)(B)
is hereby expressly excluded from this Indenture, as permitted by the TIA.


 


Section 6.05.  Control by Majority.  The Holders of a majority in aggregate principal
amount of the Securities at the time outstanding may direct


 


43

















 


the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of exercising any trust
or power conferred on the Trustee’; provided,
that (i) such direction shall not be in conflict with any rule of law or with
this Indenture, (ii) the Trustee shall not determine that the action so
directed would be unjustly prejudicial to the Holders not taking part in such
direction, and (iii) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.  This Section 6.05 shall be in lieu of
Section 316(a)(1)(A) of the TIA and such Section 316(a)(1)(A) is hereby
expressly excluded from this Indenture, as permitted by the TIA.


 


Section 6.06.  Limitation on Suits.  No Holder of any Security shall have any right to
order or direct the Trustee to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless:


 


(a)           the
Holder gives to the Trustee written notice stating that an Event of Default is
continuing;


 


(b)           the
Holders of at least 25% in aggregate principal amount of the Securities at the
time outstanding make a written request to the Trustee to institute proceedings
in respect of such Event of Default in its own name as Trustee hereunder;


 


(c)           such
Holder or Holders have offered to the Trustee security or indemnity reasonably
satisfactory to the Trustee against any loss, liability or expense;


 


(d)           the
Trustee does not comply with the request within 60 days after receipt of such
notice, request and offer of security or indemnity; and


 


(e)           the
Holders of a majority in aggregate principal amount of the Securities at the
time outstanding do not give the Trustee a direction inconsistent with the request
that has been given to the Trustee during such 60-day period;


 


it being understood and intended that no one
or more Holders shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice
the rights of any other Holders, or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all the Holders.


 


Section 6.07.  Rights of Holders to Receive Payment
and to Convert. Notwithstanding any other provision of this
Indenture, the right of any Holder to receive payment of interest installments
(including Additional Interest, if any), the principal amount, Redemption
Price, Repurchase Price, Change in


 


44

















 


Control Repurchase Price or interest, if any,
due on overdue amounts in respect of the Securities held by such Holder, on or
after the respective due dates expressed in the Securities, and to convert the
Securities in accordance with Article 10, or to bring suit for the enforcement
of any such payment on or after such respective dates or the enforcement of the
right to convert, shall not be impaired or affected adversely without the
consent of such Holder.


 


Section 6.08.  Collection Suit by Trustee.  If an Event of Default described
in Section 6.01(1) or Section 6.01(2) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company or any other obligor upon the Securities for the whole amount owing
with respect to the Securities and the amounts provided for in Section 7.07.


 


Section 6.09.  Trustee May File Proofs of Claim.  In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to the Company or
any other obligor upon the Securities or the property of the Company or of such
other obligor or their creditors, the Trustee (irrespective of whether any
amounts in respect of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of any such
amounts) shall be entitled and empowered, by intervention in such proceeding or
otherwise,


 


(a)           to
file and prove a claim for any accrued but unpaid amounts due in respect of the
Securities, and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel or any other amounts due the Trustee under
Section 7.07) and of the Holders allowed in such judicial proceeding, and


 


(b)           to
collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same;


 


and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section
7.07.


 


Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of


 


45

















 


reorganization,
arrangement, adjustment or composition affecting the Securities or the rights
of any Holder thereof, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.


 


Section 6.10.  Priorities.  Subject
to Article 11, if the Trustee collects any money pursuant to this Article 6, it
shall pay out the money in the following order:


 


FIRST:  to the Trustee for amounts due under Section
7.07;


 


SECOND:  to Holders for amounts due and unpaid on the
Securities and for any accrued but unpaid interest amounts due in respect of
the Securities, ratably, without preference or priority of any kind, according
to such amounts due and payable on the Securities; and


 


THIRD:  the balance, if any, to the Company.


 


The Trustee
may fix a record date and payment date for any payment to Holders pursuant to
this Section 6.10.  At least 15 days
before such record date, the Trustee shall mail to each Holder and the Company
a notice that states the record date, the payment date and the amount to be
paid.


 


Section 6.11.  Suits.  In
any suit for the enforcement of any right or remedy under this Indenture or in
any suit against the Trustee for any action taken or omitted by it as Trustee,
a court in its discretion may require the filing by any party litigant (other
than the Trustee) in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys’ fees and expenses, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant.  This
Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07 or a suit by Holders of more than 10% in aggregate
principal amount of the Securities at the time outstanding.  This Section 6.11 shall be in lieu of
Section 315(e) of the TIA and such Section 315(e) is hereby expressly excluded
from this Indenture, as permitted by the TIA.


 


Section 6.12.  Waiver of Stay, Extension or Usury
Laws.  The Company
covenants (to the fullest extent that it may lawfully do so) that it will not
at any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law or any usury or other
law wherever enacted, now or at any time hereafter in force, which would prohibit
or forgive the Company from paying all or any portion of any amounts due in
respect of the Securities, as contemplated herein, or which may affect the
covenants or the performance of this Indenture; and the Company (to the fullest
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power


 


46

















 


herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.


 


ARTICLE 7

TRUSTEE


 


Section 7.01.  Duties of Trustee.


 


(a)           If
an Event of Default has occurred and is continuing, the Trustee shall exercise
the rights and powers vested in it by this Indenture and use the same degree of
care and skill in its exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.


 


(b)           Except
during the continuance of an Event of Default:


 


(i)    the Trustee need perform only
those duties that are specifically set forth in this Indenture and no others;
and


 


(ii)   in the absence of bad faith on
its part, the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of this
Indenture, but in case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to the Trustee, the
Trustee shall examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture, but need not confirm or
investigate the accuracy of mathematical calculations or other facts stated
therein.


 


This Section
7.01(b) shall be in lieu of Section 315(a) of the TIA and such Section 315(a)
is hereby expressly excluded from this Indenture, as permitted by the TIA.


 


(c)           The
Trustee may not be relieved from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that:


 


(i)    this paragraph (c) does not
limit the effect of paragraph (b) of this Section 7.01;


 


(ii)   the Trustee shall not be liable
for any error of judgment made in good faith by a Responsible Officer unless it
is conclusively determined by a court of competent jurisdiction that the
Trustee was negligent in ascertaining the pertinent facts; and


 


47

















 


(iii)  the Trustee shall not be liable
with respect to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section 6.02, 6.04 or
6.05.


 


Sections 7.01(c)(i), (ii) and (iii) shall be
in lieu of Sections 315(d)(1), 315(d)(2) and 315(d)(3) of the TIA and such
Sections 315(d)(1), 315(d)(2) and 315(d)(3) are hereby expressly excluded from
this Indenture, as permitted by the TIA.


 


(d)           Every
provision of this Indenture that in any way relates to the Trustee is subject
to Sections 7.01(a), (b), (c), (e) and (f).


 


(e)           The
Trustee shall comply with any order or directive of a Gaming Authority
requiring that the Trustee submit, at the expense of the Company, an
application for any license, finding of suitability or other approval pursuant
to any gaming law and will reasonably cooperate fully and completely in any
proceeding related to such application; provided,
however, that in the event the Trustee in its reasonable judgment
determines that complying with such order or directive would subject it or its
officers or directors to unreasonable or onerous requirements, the Trustee may,
at its option, resign as Trustee in lieu of complying with such order or
directive; and provided, further,
that no resignation shall become effective until a successor Trustee is
appointed and delivers a written acceptance in accordance with Section 7.08
hereof.


 


(f)            Money
held by the Trustee in trust hereunder need not be segregated from other funds
except to the extent required by law. 
The Trustee (acting in any capacity hereunder) shall be under no
liability for interest on any money received by it hereunder unless otherwise
agreed in writing with the Company.


 


(g)           For
the avoidance of doubt, the Trustee shall not be responsible for, and shall
have no obligation to, monitor the availability of a Holder to convert its
Securities pursuant to Section 10.01 or to calculate any adjustment to the
Conversion Price pursuant to Section 10.05.


 


Section 7.02.  Rights of Trustee. 
Subject to its duties and responsibilities under Section 7.01
and the TIA,


 


(a)           the
Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document (whether in its
original form or facsimile form) reasonably believed by it to be genuine and to
have been signed or presented by the proper party or parties;


 


(b)           whenever
in the administration of this Indenture the Trustee shall deem it desirable
that a matter be proved or established prior to taking, suffering


 


48

















 


or omitting
any action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may obtain and, in the absence of bad faith or negligence on its
part, conclusively rely upon an Officers’ Certificate and/or an Opinion of
Counsel;


 


(c)           the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, attorneys, custodians or
nominees, and without limiting the generality of the foregoing, the Trustee may
appoint an agent (i) to obtain the quotations referred to in the definition of
“Trading Price of the Securities,” and (ii) to report such quotations or
determinations to the Company and the Depositary on behalf of the Trustee; and
the Trustee shall not be responsible for any misconduct or negligence on the
part of any agent, attorney, custodian or nominee appointed with due care by it
hereunder;


 


(d)           the Trustee shall not
be liable for any action taken, suffered, or omitted to be taken by it in good
faith which it reasonably believes to be authorized or within its rights or
powers conferred under this Indenture;


 


(e)           the Trustee may consult
with counsel selected by it and any advice or opinion of such counsel shall be
full and complete authorization and protection in respect of any action taken
or suffered or omitted by it hereunder in good faith and in accordance with
such advice or opinion of such counsel;


 


(f)            the Trustee shall be
under no obligation to exercise any of the rights or powers vested in it by
this Indenture at the request, order or direction of any of the Holders,
pursuant to the provisions of this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity satisfactory to it against the
costs, expenses and liabilities which may be incurred therein or thereby;


 


(g)           any request or
direction of the Company mentioned herein shall be sufficiently evidenced by a
Company Order and any resolution of the Board of Directors shall be
sufficiently evidenced by a Board Resolution;


 


(h)           the Trustee shall not
be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as it
may see fit;


 


(i)            the Trustee shall not
be deemed to have notice of any Default or Event of Default, except (i) any
Event of Default occurring pursuant to Sections 6.01(1), 6.01(2) or 4.01, or
(ii) unless a Responsible Officer of the Trustee has actual knowledge thereof
or unless written notice of any event which is in fact


 


49

















 


such a Default is received by the Trustee at
the Corporate Trust Office, and such notice references the Securities and this
Indenture;


 


(j)            the rights,
privileges, protections, immunities and benefits given to the Trustee,
including its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder (including
Paying Agent, Registrar and Conversion Agent), and to all other Persons
employed to act hereunder, including the Trustee’s officers, employees, agents
and custodians;


 


(k)           the Trustee may request
that the Company deliver an Officers’ Certificate setting forth the names of
individuals and/or titles of officers authorized at such time to take specified
actions pursuant to this Indenture, which Officers’ Certificate may be signed
by any person authorized to sign an Officers’ Certificate, including any person
specified as so authorized in any such certificate previously delivered and not
superseded;


 


(l)            in no event shall the
Trustee be liable for special, indirect or consequential loss or damage of any
kind whatsoever (including but not limited to lost profits), even if the
Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action;


 


(m)          the Trustee is not
required to give any bond or surety with respect to the performance of its duties
or the exercise of its powers under this Indenture; and


 


(n)           notwithstanding
anything else herein contained, whenever any provision of this Indenture
indicates that any confirmation of a condition or event is qualified by the
words “to the knowledge of” or “known to” the Trustee or other words of similar
meaning, said words shall mean and refer to the current awareness of one or
more Responsible Officers who are located at the Corporate Trust Office.


 


Section 7.03.  Individual Rights of Trustee.  The Trustee in its individual or
any other capacity may become the owner or pledgee of Securities and may
otherwise deal with the Company or its Affiliates with the same rights it would
have if it were not Trustee.  Any Paying
Agent, Registrar, Conversion Agent or co-registrar may do the same with like
rights.  However, the Trustee must
comply with Sections 7.10 and 7.11.


 


Section 7.04.  Trustee’s Disclaimer.  The Trustee makes no representation as to the validity
or adequacy of this Indenture or the Securities, shall not be accountable for
the Company’s use or application of the proceeds from the Securities, and shall
not be responsible for any statement in any registration statement for the
Securities under the Securities Act or in any offering document


 


50

















 


for the Securities, the Indenture or the
Securities (other than its certificate of authentication).


 


Section 7.05.  Notice of Defaults.  If an Event of Default occurs and if it is actually
known to a Responsible Officer of the Trustee, the Trustee shall give to each
Holder notice of all current Event of Defaults known to it within 90 days after
any such Event of Default occurs or, if later, within 15 days after it is known
to the Trustee, unless such Event of Default shall have been cured or waived
before the giving of such notice. 
Notwithstanding the preceding sentence, except in the case of an Event
of Default described in Sections 6.01(1) and 6.01(2) the Trustee may withhold
the notice if and so long as a trust committee of officers of the Trustee in
good faith determines that withholding the notice is in the interests of
Holders.  The second sentence of this
Section 7.05 shall be in lieu of the proviso to Section 315(b) of the TIA and
such proviso is hereby expressly excluded from this Indenture, as permitted by
the TIA.


 


Section 7.06.  Reports by Trustee to Holders.  Within 60 days after each July 31
beginning with the July 31 following the date of this Indenture, the Trustee
shall mail to each Holder a brief report dated as of such July 31 that complies
with TIA Section 313(a), if required by such Section 313(a), but only to the
extent any such report is required to be given pursuant to said TIA Section
313(a), or any successor provision of the TIA. 
The Trustee also shall comply with TIA Section 313(b).


 


Commencing at the time this Indenture is qualified under the TIA, a
copy of each report at the time of its mailing to Holders shall be mailed to
the Company and filed with the SEC and each securities exchange, if any, on
which the Securities are listed.  The
Company agrees to notify the Trustee in writing promptly whenever the
Securities become listed on any securities exchange and of any delisting
thereof.


 


Section
7.07.  Compensation
and Indemnity.  The Company agrees:


 


(a)           to
pay to the Trustee from time to time, and the Trustee shall be entitled to,
such compensation as the Company and the Trustee shall from time to time agree
in writing for all services rendered by it hereunder (which compensation shall
not be limited (to the extent permitted by law) by any provision of law in
regard to the compensation of a trustee of an express trust);


 


(b)           to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of
this Indenture or any documents executed in connection herewith (including the
reasonable compensation and the expenses, advances and disbursements of its
agents and counsel), except any such expense,


 


51

















 


disbursement or advance to the extent
incurred by the Trustee through its negligence, bad faith or willful
misconduct; and


 


(c)           to
indemnify the Trustee or any predecessor Trustee and their respective agents,
officers, directors and employees for, and to hold them harmless against, any
loss, damage, claim, liability, cost or expense (including attorneys’ fees and
expenses and taxes (other than franchise, capital, net worth, employment and ad
valorem taxes and taxes based upon, measured by or determined by the income or
gross receipts of the Trustee)) incurred without negligence or bad faith on
their part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
themselves against any claim (whether asserted by the Company or any Holder or
any other Person) or liability in connection with the Trustee’s exercise or
performance of any of its powers or duties hereunder.  The Trustee shall notify the Company promptly of any claim
asserted against the Trustee for which it may seek indemnity.  The Company shall defend the claim and the
Trustee shall provide reasonable cooperation at the Company’s expense in the
defense.  The Trustee may have separate
counsel and the Company shall pay the reasonable fees and expenses of such
counsel; provided, that the Company will not be required to pay such fees and
expenses if it assumes the Trustee’s defense and there is no conflict of
interest between the Company and the Trustee in connection with such
defense.  The Company need not pay for
any settlement made without its written consent.  The Company need not reimburse any expense or indemnify against
any loss or liability to the extent incurred by the Trustee through its
negligence, bad faith or willful misconduct.


 


To secure the Company’s payment obligations in this Section 7.07, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, except any money or property held in trust to pay
interest installments (including Additional Interest, if any), the principal
amount, Redemption Price, Repurchase Price, Change in Control Repurchase Price
or interest, if any, due on overdue amounts, as the case may be, in respect of
any particular Securities.


 


The Company’s payment obligations pursuant to this Section 7.07 shall
survive the discharge of this Indenture or the earlier termination or
resignation of the Trustee.  When the
Trustee incurs expenses after the occurrence of an Event of Default specified
in Section 6.01(5) or Section 6.01(6), the expenses, including the reasonable
charges and expenses of its counsel, are intended to constitute expenses of
administration under any Bankruptcy Law.


 


Section
7.08.  Replacement of Trustee.  The
Trustee may resign by so notifying the Company; provided that no such resignation shall be effective until a
successor Trustee has accepted its appointment pursuant to this Section
7.08.  The


 


52

















 


Holders of a majority in aggregate principal
amount of the Securities at the time outstanding may remove the Trustee by so
notifying the Trustee and the Company in writing.  The Company shall remove the Trustee if:


 


(a)           the
Trustee fails to comply with Section 7.10;


 


(b)           the
Trustee is adjudged bankrupt or insolvent;


 


(c)           a
receiver or public officer takes charge of the Trustee or its property; or


 


(d)           the
Trustee otherwise becomes incapable of acting.


 


If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint, by Board
Resolution, a successor Trustee.


 


A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company satisfactory in form and
substance to the retiring Trustee and the Company.  Thereupon the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee shall have all the rights,
powers and duties of the Trustee under this Indenture; provided, notwithstanding the foregoing,
the effectiveness of any such resignation or removal shall be conditioned on
receipt by the retiring Trustee of all amounts due and owing under Section 7.07
hereof.  The successor Trustee shall
mail a notice of its succession to Holders. 
The retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, subject to the lien provided for in Section
7.07.


 


If a successor
Trustee does not take office within 60 days after the retiring Trustee gives
its notice of resignation or is removed, the retiring Trustee, the Company or
the Holders of a majority in aggregate principal amount of the Securities at
the time outstanding may petition any court of competent jurisdiction at the
expense of the Company for the appointment of a successor Trustee.


 


If the Trustee fails to comply with Section 7.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.


 


Section 7.09.  Successor Trustee by Merger Etc.  If the Trustee consolidates with,
merges or converts into, or transfers all or substantially all its corporate
trust business or assets (including the administration of the trust created by
this Indenture) to, another Person, the resulting or surviving Person without
any further act shall be the successor Trustee. As soon as practicable, the
successor Trustee shall mail a notice of its succession to the Company and the


 


53

















 


Holders. 
Any such successor must nevertheless be eligible and qualified under the
provisions of Section 7.01 hereof.


 


Section 7.10.  Eligibility; Disqualification.  The Trustee shall at all times
satisfy the requirements of TIA Section 310(a)(1).  The Trustee (or its parent holding company) shall have a combined
capital and surplus of at least $25,000,000 as set forth in its most recent
filed annual report of condition. 
Nothing herein contained shall prevent the Trustee from filing with the
SEC the application referred to in the penultimate paragraph of TIA Section
310(b).  The Trustee shall comply with
TIA Section 310(b.


 


If at any time
the Trustee shall cease to be eligible in accordance with this Section 7.10, it
shall resign immediately in the manner and with the effect specified in Article
7.


 


Section 7.11.  Preferential Collection of Claims
Against Company.  The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). 
A Trustee who has resigned or been removed shall be subject to TIA
Section 311(a) to the extent indicated therein.


 


Section 7.12.  Force Majeure. 
To the extent permitted by the TIA, in no event shall the
Trustee be liable for any failure or delay in the performance of its
obligations hereunder because of circumstances beyond the Trustee’s control,
including, but not limited to, acts of God, flood, war (whether declared or
undeclared), terrorism, fire, riot, embargo or government action, including any
laws, ordinances, regulations, governmental action or the like which delay,
restrict or prohibit the providing of the services contemplated by this
Indenture.


 


ARTICLE 8

DISCHARGE OF INDENTURE


 


Section 8.01.  Discharge of Liability on Securities.  When (a) the Company delivers to
the Trustee all outstanding Securities (other than Securities replaced pursuant
to Section 2.07) for cancellation or (b) all outstanding Securities have become
due and payable and the Company deposits with the Trustee or Paying Agent cash
or Ordinary Shares (as applicable under the terms of this Indenture) sufficient
to pay all amounts due and owing on all outstanding Securities (other than
Securities replaced pursuant to Section 2.07), and if in either case the
Company pays all other sums payable hereunder by the Company, then this
Indenture shall, subject to Section 7.07, cease to be of further effect.  The Trustee shall join in the execution of a
document prepared by the Company acknowledging satisfaction and discharge of
this Indenture on demand at the cost


 


54

















 


and expense of the Company and accompanied by
an Officers’ Certificate and Opinion of Counsel.


 


Section 8.02.  Repayment to the Company.  The Trustee, the Paying Agent and
the Conversion Agent shall return to the Company upon written request any money
or Ordinary Shares held by them for the payment of any amount and any Ordinary
Shares with respect to the Securities that remain unclaimed for two years,
subject to applicable unclaimed property law. 
After return to the Company, as applicable, Holders entitled to the
money or Ordinary Shares must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another person
and the Trustee, the Paying Agent and the Conversion Agent shall have no
further liability to the Holders with respect to such money or Ordinary Shares
for that period commencing after the return thereof.


 


ARTICLE 9

AMENDMENTS


 


Section 9.01.  Without Consent of Holders.  The Company and the Trustee may
amend or supplement this Indenture or the Securities without notice to or
consent of any Holder:


 


(a)           to
comply with Article 5 or Section 10.11;


 


(b)           to cure any ambiguity,
omission, defect or inconsistency in this Indenture;


 


(c)           to make any other
change that does not adversely affect the rights of any Holder in any material
respect; provided that any change
to conform this Indenture to the Offering Memorandum shall be deemed not to
adversely affect the rights of any Holder;


 


(d)           to make provisions with
respect to the conversion right of the Holders pursuant to the requirements of
Section 10.01;


 


(e)           to evidence and provide
for the acceptance of appointment hereunder by a successor Trustee with respect
to the Securities; or


 


(f)            to comply with the
provisions of the TIA, or with any requirement of the SEC arising as a result
of the qualification of this Indenture under the TIA.


 


55

















 


Section 9.02.  With Consent of Holders.


 


The Company and
the Trustee may amend or supplement this Indenture or the Securities without
notice to any Holder but with the consent of the Holders of a majority in
aggregate principal amount of the Securities at the time outstanding.  The Holders of a majority in aggregate
principal amount of the Securities at the time outstanding may waive compliance
by the Company with restrictive provisions of this Indenture other than as set
forth in this Section 9.02 below, and waive any past Event of Default under
this Indenture and its consequences, except a default in the payment of the
principal of, or Redemption Price, Repurchase Price, Change in Control
Repurchase Price of, or any interest on, any Security, or in respect of a
provision which under this Indenture cannot be modified or amended without the
consent of the Holder of each outstanding Security affected.


 


Subject to
Section 9.04, without the consent of each Holder affected, however, an
amendment, supplement or waiver, including a waiver pursuant to Section 6.04,
may not:


 


(a)           change the Stated
Maturity of, or any payment date of any installment of interest (including
Additional Interest, if any) on, any Security;


 


(b)           reduce the principal
amount or Redemption Price, Repurchase Price, or Change in Control Repurchase
Price of, or the rate of interest on, any Security, whether upon acceleration,
redemption or otherwise, or alter the manner of calculation of interest or the
rate of accrual thereof on any Security;


 


(c)           change the currency for
payment of principal of, or interest on, any Security;


 


(d)           impair the right to
institute suit for the enforcement of any payment of any amount with respect to
any Security when due;


 


(e)           adversely affect the
conversion rights provided in Article 10;


 


(f)            modify the provisions
of this Indenture requiring the Company to make an offer to repurchase
Securities upon a Change in Control pursuant to Section 3.09, or to repurchase
the Securities at the option of the Holders pursuant to Section 3.08;


 


(g)           reduce the percentage
of principal amount of the outstanding Securities necessary to modify or amend
this Indenture or to consent to any waiver provided for in this Indenture;


 


(h)           waive a default in the
payment of any amount or Ordinary Shares with respect to any Security when due
(except as provided in Section 6.02); or


 


(i)            make any changes to
Section 6.04, Article 10 or this Section 9.02.


 


56

















 


It shall not
be necessary for the consent of the Holders under this Section 9.02 to approve
the particular form of any proposed amendment, supplement or waiver, but it
shall be sufficient if such consent approves the substance thereof.


 


After an
amendment under this Section 9.02 becomes effective, the Company shall mail to
each Holder a notice briefly describing the amendment.  Failure to mail the notice or a defect in
the notice shall not affect the validity of the amendment.


 


Section 9.03.  Compliance with Trust Indenture Act.  Every amendment, waiver or
supplement of this Indenture or the Securities shall comply with the TIA as
then in effect.


 


Section 9.04.  Revocation and Effect of Consents.  Until an amendment, waiver or
supplement becomes effective, a consent to it by a Holder is a continuing
consent by the Holder and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder’s Security, even
if notation of the consent is not made on any Security.  However, any such Holder or subsequent
Holder may revoke the consent as to his Security or portion of his Security by
written notice to the Company or the person designated by the Company as the
person to whom consents should be sent if such revocation is received by the
Company or such person before the date on which the Trustee receives an Officers’
Certificate certifying that the Holders of the requisite principal amount of
Securities have consented (and not theretofore revoked such consent) to the
amendment, supplement or waiver.


 


The Company
may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to consent to any amendment, supplement or
waiver, which record date shall be the date so fixed by the Company
notwithstanding the provisions of the TIA. 
If a record date is fixed, then notwithstanding the last sentence of the
immediately preceding paragraph, those persons who were Holders at such record
date, and only those persons (or their duly designated proxies), shall be
entitled to revoke any consent previously given, whether or not such persons continue
to be Holders after such record date. 
No such consent shall be valid or effective for more than 90 days after
such record date.


 


After an
amendment, supplement or waiver becomes effective, it shall bind every
Securityholder, unless it makes a change described in any of clauses (a)
through (i) of Section 9.02, in which case, the amendment, supplement or waiver
shall bind only each Holder of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security that evidences the
same debt as the consenting Holder’s Security; provided, that any such waiver
shall not impair or affect the right of any Holder to receive payment of
principal


 


57

















 


and premium of and interest (and Additional
Interest, if any) on a Security, on or after the respective dates set for such
amounts to become due and payable expressed in such Security, or to bring suit
for the enforcement of any such payment on or after such respective dates.


 


Section 9.05.  Notation on or Exchange of Securities.   Securities authenticated and
delivered after the execution of any supplemental indenture pursuant to this
Article 9 may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture.  If the Company shall so
determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any such supplemental indenture may be
prepared and executed by the Company, and such new Securities may be
authenticated and delivered by the Trustee in exchange for outstanding
Securities.


 


Section 9.06.  Trustee to Sign Supplemental
Indentures.  The Trustee
shall sign any amendment, waiver or supplemental indenture authorized pursuant
to this Article 9 if the amendment contained therein does not, in the sole
determination of the Trustee, adversely affect the rights, duties, powers,
privileges, benefits, indemnities, liabilities or immunities of the Trustee.  If it does, the Trustee may, but need not,
sign such supplemental indenture.  In
signing any supplemental indenture the Trustee shall be provided with, and
(subject to the provisions of Section 7.01) shall be fully protected in relying
upon, an Officers’ Certificate and an Opinion of Counsel stating that such
amendment is authorized or permitted by this Indenture.


 


Section 9.07.  Effect of Supplemental Indentures.  Upon the execution of any
supplemental indenture under this Article 9, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes, and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.


 


ARTICLE 10

CONVERSION OF THE SECURITIES


 


Section 10.01.  Conversion Privilege.


 


(a)           Subject
to the provisions of this Article 10, a Holder of a Security may convert such
Security into cash and Ordinary Shares equal to the Conversion Value in
accordance with Section 10.14, if any of the following conditions are
satisfied:


 


58

















 


(i)    during any fiscal quarter of
the Company (the “Quarter”)
commencing on or after April 5, 2004, if the Ordinary Share Price for at least
20 Trading Days in the period of 30 consecutive Trading Days ending on the last
Trading Day of the Quarter immediately preceding such Quarter (appropriately
adjusted to take into account the occurrence, during such 30 consecutive
Trading Day period, of any event requiring adjustment of the Conversion Price
under this Indenture) is more than 120% of the Conversion Price on such 30th
Trading Day;


 


(ii)   such Security has been called
for redemption by the Company pursuant to Section 3.01 and the redemption has
not yet occurred, so long as the Holder surrenders such Security for conversion
prior to the close of business on the date that is two Business Days prior to
the applicable Redemption Date, even if the Security is not otherwise
convertible at such time;


 


(iii)  (A)          during the five Trading Day period
immediately after a period of five consecutive Trading Days in which the
Trading Price of $1,000 principal amount of the Securities for each Trading Day
in such five Trading Day period was less than 95% of the product of (x) the
Ordinary Share Price on such Trading Day and (y) the Conversion Rate on such
Trading Day;


 


(B)           notwithstanding the
foregoing, if on the date of any conversion pursuant to Section
10.01(a)(iii)(A), the Ordinary Share Price on such date is greater than the
Conversion Price on such date but less than 120% of the Conversion Price on
such date, then, for purposes of Section 10.14, the Conversion Value a Holder
of Securities will be entitled to receive will be equal to the principal amount
of the Securities held by such Holder plus accrued and unpaid interest
(including Additional Interest, if any) as of the Conversion Date (such a
conversion, a “Principal Value Conversion”);


 


(iv)  the Company elects to (A) make a
distribution to all holders of Ordinary Shares of rights, warrants or options
entitling them to subscribe for or purchase (for a period commencing no earlier
than the date of distribution and expiring not more than 60 days after the date
of distribution) Ordinary Shares at a price less than the average Ordinary
Share Price for the 10 Trading Days immediately preceding the date such
distribution was first publicly announced; or


 


(B)           make a distribution
(other than in respect of a tender offer or exchange offer) to all holders of
Ordinary Shares where the fair market value of such distribution per Ordinary
Share (as determined by the Board


 


59

















 


of Directors,
whose determination shall be conclusive evidence of such fair market value)
exceeds 10% of the Ordinary Share Price on the Trading Day immediately
preceding the date such distribution was first publicly announced that does not
result in an adjustment to the Conversion Price or a right to receive cash
pursuant to Section 10.05;


 


provided, that the Holder shall have no right
to convert any Security pursuant to this Section 10.01(a)(iv) hereof if the
Holder of a Security otherwise participates in the distribution described in
this Section 10.01(a)(iv) on an as-converted basis solely into Ordinary Shares
at the then applicable Conversion Price without conversion of such Holder’s
Securities; provided, further, however,
that Holders of Securities will have the right to do so only if the Company
specifically so elects in connection with such transaction; or


 


(v)   the Company reclassifies its
Ordinary Shares or is party to a consolidation, merger, share exchange, sale of
all or substantially all of its properties and assets or other similar
transaction, in each case pursuant to which the Ordinary Shares are subject to
conversion into cash, securities or other property from and after the effective
date of such transaction until and including the date that is 30 days after the
effective date of such transaction.


 


(b)           In
the case of Section 10.01(a)(iii), the Trustee shall have no obligation to
determine the Trading Price of the Securities unless the Company has requested
such determination in writing, and the Company shall have no obligation to make
such request unless a Holder of the Securities provides the Company with
reasonable evidence that the Trading Price of the Securities on any date would
be less than 95% of the product of (x) the Ordinary Share Price on such date
and (y) the Conversion Rate then in effect. 
Upon receipt of such reasonable evidence, the Company shall instruct the
Trustee in writing to determine the Trading Price of the Securities beginning
on the next Trading Day and on each successive Trading Day until the Trading
Price of the Securities is greater than or equal to 95% of the product of the Ordinary
Share Price and the Conversion Rate. 
Neither the Trustee nor the Conversion Agent shall be under any duty or
obligation to make the calculations described in Section 10.01(a)(iii) hereof
or to determine whether the Securities are convertible pursuant to such
Section.  The Company shall make the
calculations described in Section 10.01(a)(iii) hereof using the Trading Price
of the Securities provided by the Trustee, shall determine whether the
Securities are convertible under Section 10.01(a)(iii) and shall advise the
Trustee (or Conversion Agent, as the case may be) of any determination that the
Securities are convertible under Section 10.01(a)(iii).


 


60

















 


(c)           In
the case of the foregoing Sections 10.01(a)(iv)(A) and 0, the Company shall
cause a notice of such distribution to be filed with the Trustee and the
Conversion Agent and to be mailed to each Holder of Securities no later than 20
days prior to the Ex-Dividend Date for such distribution.  Once the Company has given such notice,
Holders may surrender their Securities for conversion at any time thereafter
until the earlier of the close of business on the Business Day prior to the
Ex-Dividend Date or the Company’s announcement that such distribution will not
take place.  The “Ex-Dividend Date” for any such issuance or
distribution means the date immediately prior to the commencement of
“ex-dividend” trading for such issuance or distribution on The New York Stock
Exchange or such other national securities exchange or The Nasdaq Stock Market
or similar system of automated dissemination of quotations of securities prices
on which the Ordinary Shares is then listed or quoted.


 


(d)           A
Holder may convert a portion of a Security equal to $1,000 or any integral multiple
thereof.  Provisions of this Indenture
that apply to conversion of all of a Security also apply to conversion of a
portion of a Security.


 


If a Security
is called for redemption pursuant to Section 3.01, in order to convert such
Security, the Holder must deliver the Security to the Conversion Agent (or, if
the Security is held in book-entry form, complete and deliver to the Depositary
appropriate instructions in accordance with the Applicable Procedures) at any
time prior to the close of business on the day that is two Business Days prior
to the applicable Redemption Date for such Security (unless the Company shall
default in paying the Redemption Price when due, in which case the conversion
right shall terminate on the date such default is cured and such Security is
redeemed).  A Security in respect of
which a Holder has delivered a Change in Control Repurchase Notice pursuant to
Section 3.09 exercising the option of such Holder to require the Company to
repurchase such Security may be converted only if such Change in Control
Repurchase Notice is withdrawn by a written notice of withdrawal delivered to
the Paying Agent prior to the close of business on the Change in Control
Repurchase Date in accordance with Section 3.10.


 


(e)           A
Holder of Securities is not entitled to any rights of a holder of Ordinary
Shares until such Holder has converted its Securities into Ordinary Shares.


 


Section 10.02.  Conversion Procedure.


 


(a)           To
convert a Security, a Holder must (i) if the Security is in definitive form,
complete and manually sign the irrevocable conversion notice on the back of the
Security and deliver such notice to the Conversion Agent, (ii) if the Security
is in definitive form, surrender the Security to the Conversion Agent,


 


61

















 


(iii) if the
Security is in definitive form, furnish appropriate endorsements and transfer
documents if required by the Registrar or the Conversion Agent, (iv) pay any
transfer or other tax, if required by Section 10.03 and (v) if the Security is
held in book-entry form, complete and deliver to the Depositary appropriate
instructions pursuant to the Applicable Procedures.  The later of (x) the date on which the Holder satisfies all of
the foregoing requirements and (y) the Determination Date is the “Conversion Date”.  As promptly as practicable after the Conversion Date, and in any
event within four Business Days of the Determination Date, the Company shall
deliver to the Holder through the Conversion Agent (1) cash in the amount calculated
in accordance with Section 10.14, (2) the number of whole Ordinary Shares
issuable upon the conversion and (3) cash in lieu of any fractional shares
pursuant to Section 10.14.


 


(b)           The
Person in whose name the Security is registered shall be deemed to be a
stockholder of record on the Conversion Date; provided
that no surrender of a Security on any date when the stock transfer books of
the Company shall be closed shall be effective to constitute the Person or
Persons entitled to receive the Ordinary Shares upon such conversion as the
record holder or holders of such Ordinary Shares on such date, but such
surrender shall be effective to constitute the Person or Persons entitled to
receive such Ordinary Shares as the record holder or holders thereof for all
purposes at the close of business on the next succeeding day on which such
stock transfer books are open; provided,
further that such conversion shall be at the Conversion Price in
effect on the date that such Security shall have been surrendered for
conversion, as if the stock transfer books of the Company had not been
closed.  Upon conversion of a Security,
such Person shall no longer be a Holder of such Security.


 


(c)           No
payment or adjustment will be made for accrued but unpaid interest (including Additional
Interest, if any) on a converted Security or for dividends or distributions on
Ordinary Shares issued upon conversion of a Security (provided that the Ordinary Shares received
upon conversion of Securities shall continue to accrue Additional Interest, as
applicable, in accordance with the Registration Rights Agreement and shall be
entitled to receive, at the next interest payment date, any accrued but unpaid
Additional Interest with respect to the converted Securities).  The Company shall not adjust the Conversion
Price to account for the accrued but unpaid interest.  Nonetheless, if Securities are converted after the close of
business on a regular record date and prior to the opening of business on the
next interest payment date, including the Stated Maturity, Holders of such
Securities at the close of business on such regular record date shall receive
the accrued but unpaid interest (including Additional Interest, if any) payable
on such Securities on the corresponding interest payment date notwithstanding
the conversion.  In such event, such
Security, when surrendered for conversion, must be accompanied by delivery of a
check payable to the Conversion Agent in an amount equal to the accrued but


 


62

















 


unpaid
interest (including Additional Interest, if any) payable on such interest
payment date on the portion so converted. 
If such payment does not accompany such Security, the Security shall not
be converted; provided that no
such check shall be required if such Security has been called for redemption on
a redemption date within the period between the close of business on such
record date and the opening of business on such interest payment date, or if
such Security is surrendered for conversion on the interest payment date.  If the Company defaults in the payment of
interest (including Additional Interest, if any) payable on the interest
payment date, the Conversion Agent shall repay such funds to the Holder.


 


(d)           Upon
surrender of a Security that is converted in part, the Company shall execute,
and the Trustee shall, upon receipt of a Company Order, authenticate and
deliver to the Holder, a new Security equal in principal amount to the
unconverted portion of the Security surrendered.


 


Section 10.03.  Taxes on Conversion.  If a Holder converts a Security, the Company shall pay
any documentary, stamp or similar issue or transfer tax due on the Ordinary
Shares issuable upon such conversion. 
However, the Holder shall pay any tax which is due because the Holder
requests the shares to be issued in a name other than the Holder’s name.  The Conversion Agent may refuse to deliver
the certificates representing the Ordinary Shares being issued in a name other
than the Holder’s name until the Conversion Agent receives a sum sufficient to
pay any tax which will be due because the shares are to be issued in a name
other than the Holder’s name.  Nothing
herein shall preclude any tax withholding required by law or regulations.


 


Section 10.04.  Company to Provide Stock.  The Company shall, prior to
issuance of any Securities hereunder, and from time to time as may be
necessary, reserve, out of its authorized but unissued Ordinary Shares, a
sufficient number of Ordinary Shares to permit the conversion of all
outstanding Securities into Ordinary Shares. 
The certificates representing the Ordinary Shares issued upon conversion
of Transfer Restricted Securities shall bear a legend substantially in the
following form:


 


“THIS SECURITY
(OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, OR THE “SECURITIES
ACT”, AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.  EACH PURCHASER OF THIS SECURITY IS HEREBY
NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM


 


63

















 


THE PROVISIONS
OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.


 


THE HOLDER OF
THIS SECURITY AGREES FOR THE BENEFIT OF KERZNER INTERNATIONAL LIMITED (THE
“COMPANY”) THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (I) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) PURSUANT TO
AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), (III) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR (IV) TO THE COMPANY OR ANY OF ITS
SUBSIDIARIES, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS
SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.


 


The Company
covenants that all Ordinary Shares delivered upon conversion of the Securities
shall be newly issued shares or treasury shares, shall be duly authorized,
validly issued, fully paid and non-assessable and shall be free from preemptive
rights and free of any lien or adverse claim.


 


The Company
will endeavor promptly to comply with all applicable federal and state
securities laws regulating the offer and delivery of Ordinary Shares upon
conversion of Securities and will list or cause to have quoted such Ordinary
Shares on each national securities exchange or in the over-the-counter market
or such other market on which the Ordinary Shares are then listed or quoted.


 


Section 10.05.  Adjustment of Conversion Price.  The Conversion Price shall be
adjusted (without duplication) from time to time by the Company as follows:


 


(a)           In
case the Company shall (i) pay a dividend or other distribution in Ordinary
Shares to all holders of Ordinary Shares, (ii) subdivide its outstanding
Ordinary Shares into a greater number of shares or (iii) combine its
outstanding 


 


64

















 


Ordinary
Shares into a smaller number of shares, the Conversion Price shall be adjusted
so that the Holder of any Security thereafter surrendered for conversion shall
be entitled to receive the number of Ordinary Shares which it would have owned
or been entitled to receive had such Security been converted immediately prior
to the happening of such event.  For the
purposes of calculating the Conversion Price adjustment pursuant to this
Section 10.05(a), Holders of a Security shall be treated as if they had the
right to convert the Security solely into Ordinary Shares at the then
applicable Conversion Price.  An
adjustment made pursuant to this Section 10.05(a) shall become effective
immediately after the record date in the case of a dividend or distribution and
shall become effective immediately after the effective date in the case of
subdivision, combination or reclassification.


 


(b)           In
case the Company shall issue to all holders of Ordinary Shares rights, warrants
or options entitling such holders (for a period commencing no earlier than the
date of distribution and expiring not more than 60 days after the date of
distribution) to subscribe for or purchase Ordinary Shares (or securities
convertible into Ordinary Shares) at a price per share less than the average
Ordinary Share Price for the 10 Trading Days immediately preceding the date the
distribution of such rights, warrants or options was first publicly announced
by the Company, the Conversion Price shall be decreased so that the Conversion
Price shall equal the price determined by multiplying the Conversion Price in
effect immediately prior to the record date for such issue by a fraction,


 


(i)    the numerator of which shall
be the number of Ordinary Shares outstanding on such date of public
announcement, plus the number of shares which the aggregate subscription or
purchase price for the total number of Ordinary Shares offered by the rights,
warrants or options so issued (or the aggregate conversion price of the
convertible securities offered by such rights, warrants or options) would
purchase at such average Ordinary Share Price, and


 


(ii)   the denominator of which shall
be the number of Ordinary Shares outstanding on such date of public
announcement plus the number of additional Ordinary Shares offered by such
rights, warrants or options (or into which the convertible securities so
offered by such rights, warrants or options are convertible).


 


Such
adjustment shall be made successively whenever any such rights, warrants or
options are issued, and shall become effective immediately after such record
date.  If at the end of the period
during which such rights, warrants or options are exercisable not all rights,
warrants or options shall have been exercised, the adjusted Conversion Price
shall be immediately readjusted to what it would have been upon application of
the foregoing adjustment substituting the


 


65

















 


number of additional Ordinary Shares actually
issued (or the number of Ordinary Shares issuable upon conversion of
convertible securities actually issued) for the total number of Ordinary Shares
offered (or convertible securities offered).


 


(c)           In
case the Company shall distribute to all holders of Ordinary Shares any shares
of Capital Stock of the Company (other than Ordinary Shares) or evidences of
its indebtedness, other securities or other assets, or shall distribute to all
holders of Ordinary Shares, rights, warrants or options to subscribe for or
purchase any of its securities (excluding (i) those rights, options and
warrants referred to in Section 10.05(b); (ii) those dividends, distributions,
subdivisions and combinations referred to in Section 10.05(a); and (iii) those
dividends and distributions paid in cash referred to in Section 10.05(e)), then
in each such case the Conversion Price shall be decreased so that the same
shall equal the price determined by multiplying the Conversion Price in effect
immediately prior to the date of such distribution by a fraction,


 


(i)    the numerator of which shall
be the Market Price on the record date for the determination of holders of
Ordinary Shares entitled to receive such distribution less the fair market
value on such record date (as determined by the Board of Directors, whose
determination shall be conclusive evidence of such fair market value) of the
portion of the Capital Stock or evidences of indebtedness, securities or assets
so distributed or of such rights, warrants or options, in each case applicable
to one Ordinary Share, and


 


(ii)   the denominator of which shall
be the Market Price on such record date,


 


such adjustment to become effective
immediately after the record date for such distribution; provided that if the numerator of the
foregoing fraction is less than $1.00 (including a negative amount), then in
lieu of the foregoing adjustment, adequate provision shall be made so that each
Holder shall have the right to receive upon conversion, in addition to the cash
and Ordinary Shares issuable upon such conversion, the distribution such Holder
would have received had such Holder converted its Security solely into Ordinary
Shares at the then applicable Conversion Price immediately prior to the record
date for such distribution.


 


(d)           In
case the Company or any Subsidiary of the Company makes a payment to holders of
Ordinary Shares in respect of a tender or exchange offer of consideration per
Ordinary Share having a fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a
resolution of the Board of Directors) that as of the last time (the “Expiration Time”) tenders or exchanges may
be made pursuant to such tender or exchange offer (as it may be amended)
exceeds the Ordinary Share Price on the Trading


 


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Day next
succeeding the Expiration Time, the Conversion Price shall be decreased so that
the same shall equal the price determined by multiplying the Conversion Price
in effect immediately prior to the Expiration Time by a fraction,


 


(i)    the numerator of which shall
be the number of Ordinary Shares outstanding (including any tendered or
exchanged shares) at the Expiration Time multiplied by the Ordinary Share Price
on the Trading Day next succeeding the Expiration Time, and


 


(ii)   the denominator of which shall
be the sum of (x) the fair market value (determined as aforesaid) of the
aggregate consideration payable to holders of Ordinary Shares based on the
acceptance (up to any maximum specified in the terms of the tender or exchange
offer) of all Ordinary Shares validly tendered or exchanged and not withdrawn
as of the Expiration Time (the shares deemed so accepted up to any such maximum
being referred to as the “Purchased Shares”)
and (y) the product of the number of Ordinary Shares outstanding (less any Purchased
Shares) at the Expiration Time and the Ordinary Share Price on the Trading Day
next succeeding the Expiration Time,


 


such adjustment to become effective
immediately prior to the opening of business on the day following the
Expiration Time.  If the Company is
obligated to purchase shares pursuant to any such tender or exchange offer, but
the Company is permanently prevented by applicable law from effecting any such
purchases or all such purchases are rescinded, the Conversion Price shall again
be adjusted to be the Conversion Price that would then be in effect if such
tender or exchange offer had not been made.


 


(e)           In
case the Company shall declare a cash dividend or cash distribution to all or
substantially all of the holders of Ordinary Shares, the Conversion Price shall
be decreased so that the Conversion Price shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the record date
for such dividend or distribution by a fraction,


 


(i)    the numerator of which shall
be the average of the Ordinary Share Price for the three consecutive Trading
Days ending on the Trading Day immediately preceding the record date for such
dividend or distribution (the “Pre-Dividend
Sale Price”), minus the full amount of such cash dividend or cash
distribution applicable to one Ordinary Share, and


 


(ii)   the denominator of which shall
be the Pre-Dividend Sale Price,


 


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such adjustment to become effective
immediately after the record date for such dividend or distribution; provided that if the numerator of the
foregoing fraction is less than $1.00 (including a negative amount), then in
lieu of the foregoing adjustment, adequate provision shall be made so that each
Holder shall have the right to receive upon conversion, in addition to the cash
and Ordinary Shares issuable upon such conversion, the amount of cash such
Holder would have received had such Holder converted its Security solely into
Ordinary Shares at the then applicable Conversion Price immediately prior to
the record date for such cash dividend or cash distribution.  If such cash dividend or cash distribution
is not so paid or made, the Conversion Price shall again be adjusted to be the
Conversion Price that would then be in effect if such dividend or distribution
had not been declared.


 


(f)            In
case of a tender or exchange offer made by a Person other than the Company or
any Subsidiary of the Company for an amount that increases the offeror’s
ownership of Ordinary Shares to more than twenty-five percent (25%) of the
Ordinary Shares outstanding and shall involve the payment by such Person of
consideration per Ordinary Share having a fair market value (as determined by
the Board of Directors, whose determination shall be conclusive, and described
in a resolution of the Board of Directors) that as of the last time (the “Offer Expiration Time”) tenders or
exchanges may be made pursuant to such tender or exchange offer (as it may be
amended) exceeds the Ordinary Share Price on the Trading Day next succeeding
the Offer Expiration Time, and in which, as of the Offer Expiration Time the
Board of Directors is not recommending rejection of the offer, the Conversion
Price shall be decreased so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the Offer
Expiration Time by a fraction,


 


(i)    the numerator of which shall
be the number of Ordinary Shares outstanding (including any tendered or
exchanged shares) at the Offer Expiration Time multiplied by the Ordinary Share
Price on the Trading Day next succeeding the Offer Expiration Time, and


 


(ii)   the denominator of which shall
be the sum of (x) the fair market value (determined as aforesaid) of the
aggregate consideration payable to holders of Ordinary Shares based on the
acceptance (up to any maximum specified in the terms of the tender or exchange
offer) of all shares validly tendered or exchanged and not withdrawn as of the
Offer Expiration Time (the shares deemed so accepted up to any such maximum
being referred to as the “Accepted Purchased
Shares”) and (y) the product of the number of Ordinary Shares
outstanding (less any Accepted Purchased Shares) at the Offer Expiration Time
and the Ordinary Share Price on the Trading Day next succeeding the Offer
Expiration Time,


 


68

















 


such
adjustment to become effective immediately prior to the opening of business on
the day following the Offer Expiration Time. 
If such Person is obligated to purchase shares pursuant to any such
tender or exchange offer, but such Person is permanently prevented by
applicable law from effecting any such purchases or all such purchases are
rescinded, the Conversion Price shall again be adjusted to be the Conversion
Price that would then be in effect if such tender or exchange offer had not
been made.  Notwithstanding the
foregoing, the adjustment described in this Section 10.05(f) shall not be made
if, as of the Offer Expiration Time, the offering documents with respect to
such offer disclose a plan or intention to cause the Company to engage in any
transaction described in Article 5.


 


(g)           In
any case in which this Section 10.05 shall require that an adjustment be made
immediately following a record date established for purposes of this Section
10.05, the Company may elect to defer (but only until five Business Days
following the filing by the Company with the Trustee of the certificate
described in Section 10.09) issuing to the holder of any Security converted
after such record date the cash, Ordinary Shares and other Capital Stock of the
Company issuable upon such conversion over and above the cash, Ordinary Shares
and other Capital Stock of the Company issuable upon such conversion only on
the basis of the Conversion Price prior to adjustment; and, in lieu of the cash
and shares the issuance of which is so deferred, the Company shall issue or
cause its transfer agents to issue due bills or other appropriate evidence of
the right to receive such shares.


 


(h)           Before
taking any action which would cause an adjustment decreasing the Conversion
Price so that the Ordinary Shares issuable upon conversion of the Securities
would be issued for less than the par value of such Ordinary Shares, the
Company will take all corporate action which may be necessary in order that the
Company may validly and legally issue fully paid and non-assessable shares of
such Ordinary Shares at such adjusted Conversion Price.


 


Section 10.06.  No Adjustment. 
No adjustment in the Conversion Price shall be required
unless the adjustment would require an increase or decrease of at least 1% in
the Conversion Price as last adjusted; provided
that any adjustments which by reason of this Section 10.06 are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment.  All calculations
under this Article 10 shall be made to the nearest cent, with one-half cent
rounded up, or to the nearest ten thousandth (0.0001) of a share, with each
five hundred thousandth (0.00005) of a share being rounded up, as the case may
be.


 


Except as
provided in this Indenture, the Conversion Price will not be adjusted for the
issuance of Ordinary Shares (or securities convertible into or exchangeable for
Ordinary Shares).  No adjustment need be
made except as described in Section 10.05. 
For the avoidance of doubt, no adjustment need be 


 


69

















 


made upon the issuance of Ordinary Shares
under any present or future employee benefits plan or program of the Company.


 


No adjustment
need be made for a change in the par value or a change to no par value of the
Ordinary Shares.


 


To the extent
that the Securities become convertible into cash, no adjustment need be made
thereafter as to the cash.  Interest will
not accrue on the cash.


 


Section 10.07.  Equivalent Adjustments.  If, as a result of an adjustment
made pursuant to Section 10.05 above, the Holder of any Security thereafter
surrendered for conversion shall become entitled to receive any shares of Capital
Stock of the Company other than Ordinary Shares, thereafter the Conversion
Price of such other shares so receivable upon conversion of any Securities
shall be subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to Ordinary
Shares contained in this Article 10.


 


Section 10.08.  Adjustment for Tax Purposes.  The Company shall be entitled to
make such reductions in the Conversion Price, in addition to those required by
Section 10.05, as the Board of Directors in its discretion shall determine to
be advisable in order that any stock dividends, subdivisions of shares,
distributions of rights to purchase stock or other securities, or distributions
of securities convertible into or exchangeable for stock hereafter made by the
Company to its holders of Ordinary Shares shall not be taxable to such holders.


 


Section 10.09.  Notice of Adjustment.  Whenever the Conversion Price is adjusted, or Holders
become entitled to other securities or due bills, the Company shall promptly
mail to Holders a notice of the adjustment and file with the Trustee an
Officers’ Certificate briefly stating the facts requiring the adjustment and
the manner of computing it.  The
certificate shall be conclusive evidence of the correctness of such adjustment,
absent manifest error, and the Trustee may conclusively assume that, unless and
until such certificate is received by it, no such adjustment is required.


 


Section
10.10.  Notice
of Certain Transactions.  In case:


 


(a)           the
Company shall declare a dividend (or any other distribution) on the Ordinary
Shares; or


 


(b)           the
Company shall authorize the granting to the holders of Ordinary Shares of
rights, warrants or options to subscribe for or purchase any share of any class
or any other rights, warrants or options; or


 


70

















 


(c)           of
any reclassification of the Ordinary Shares of the Company (other than a
subdivision or combination of its outstanding Ordinary Shares, or a change in
par value, or from par value to no par value, or from no par value to par
value), or of any consolidation, merger, or share exchange to which the Company
is a party and for which approval of any holders of Ordinary Shares is
required, or of the sale or transfer of all or substantially all of the
properties and assets of the Company; or


 


(d)           of
the voluntary or involuntary dissolution, liquidation or winding-up of the
Company;


 


the Company shall cause to be filed with the
Trustee and the Conversion Agent and to be mailed to each Holder of Securities
at its address appearing on the list provided for in Section 2.05, as promptly
as possible but in any event at least ten days prior to the applicable date
hereinafter specified, a notice stating (x) the date on which a record is to be
taken for the purpose of such dividend, distribution or rights, warrants or
options, or, if a record is not to be taken, the date as of which the holders
of Ordinary Shares of record to be entitled to such dividend, distribution or
rights are to be determined, or (y) the date on which such reclassification,
consolidation, merger, share exchange, sale, transfer, dissolution, liquidation
or winding-up is expected to become effective or occur, and the date as of
which it is expected that holders of Ordinary Shares of record shall be
entitled to exchange their Ordinary Shares for securities or other property
deliverable upon such reclassification, consolidation, merger, share exchange,
sale, transfer, dissolution, liquidation or winding-up.  Failure to give such notice, or any defect
therein, shall not affect the legality or validity of such dividend,
distribution, reclassification, consolidation, merger, sale, share exchange,
transfer, dissolution, liquidation or winding-up.


 


Section 10.11.  Effect of Reclassification,
Consolidation, Merger, Share Exchange or Sale on Conversion Privilege.  If any of the following shall
occur, namely:  (i) any reclassification
or change of outstanding Ordinary Shares (other than a change in par value, or
from par value to no par value, or from no par value to par value, or as a
result of a subdivision or combination); (ii) any consolidation, combination,
merger or share exchange to which the Company is a party other than a merger in
which the Company is the resulting or surviving corporation and which does not
result in any reclassification of, or change (other than a change in name, or
par value, or from par value to no par value, or from no par value to par
value, or as a result of a subdivision or combination) in, outstanding Ordinary
Shares; or (iii) any sale or conveyance of all or substantially all of the
properties and assets of the Company, then the Company, or such successor or
purchasing corporation, as the case may be, shall, as a condition precedent to
such reclassification, change, consolidation, merger, share exchange, sale or
conveyance, execute and deliver to the Trustee a supplemental indenture


 


71

















 


providing that
the Holder of each Security then outstanding shall have the right to convert
such Security into the kind and amount of cash, securities or other property
receivable upon such reclassification, change, consolidation, merger, share
exchange, sale or conveyance by a holder of the number of Ordinary Shares
deliverable upon conversion of such Security solely into Ordinary Shares at the
then applicable Conversion Price immediately prior to such reclassification,
change, consolidation, merger, share exchange, sale or conveyance.  Such supplemental indenture shall provide
for adjustments of the Conversion Price which shall be as nearly equivalent as
may be practicable to the adjustments of the Conversion Price provided for in
this Article 10.  If, in the case of any
such consolidation, merger, share exchange, sale or conveyance, the stock or
other securities and property (including cash) receivable thereupon by a holder
of Ordinary Shares includes shares of Capital Stock or other securities and
property of a corporation other than the successor or purchasing corporation,
as the case may be, in such consolidation, merger, share exchange, sale or
conveyance, then such supplemental indenture shall also be executed by such
other corporation and shall contain such additional provisions to protect the
interests of the Holders of the Securities as the Board of Directors shall
reasonably consider necessary by reason of the foregoing.  The provision of this Section 10.11 shall
similarly apply to successive consolidations, mergers, share exchanges, sales or
conveyances.  Notwithstanding the
foregoing, a distribution by the Company to all or substantially all holders of
Ordinary Shares for which an adjustment to the Conversion Price or provision
for conversion of the Securities may be made pursuant to Section 10.05 shall
not be deemed to be a sale or conveyance of all or substantially all of the
properties and assets of the Company for purposes of this Section 10.11.


 


In the event the Company shall execute a supplemental indenture
pursuant to this Section 10.11, the Company shall promptly file with the
Trustee an Opinion of Counsel stating that such supplemental indenture is
authorized or permitted by this Indenture and an Officers’ Certificate briefly
stating the reasons therefor, the kind or amount of cash, securities or other
property receivable by Holders of the Securities upon the conversion of their
Securities after any such reclassification, change, consolidation, merger,
share exchange, sale or conveyance, any adjustment to be made with respect
thereto and that all conditions precedent have been complied with.


 


Section 10.12.  Trustee’s Disclaimer.  The Trustee has no duty to determine when an
adjustment under this Article 10 should be made, how it should be made or what
adjustment should be made, but may accept as conclusive evidence of the
correctness of any such adjustment, and shall be fully protected in relying
upon, the Officers’ Certificate with respect thereto which the Company is
obligated to file with the Trustee pursuant to Section 10.09.  The Trustee shall not be accountable for and
makes no representation as to the validity or value of any


 


72

















 


securities or assets issued upon conversion
of Securities, and the Trustee shall not be responsible for the Company’s
failure to comply with any provisions of this Article 10.  Each Conversion Agent (other than the
Company or an Affiliate of the Company) shall have the same protection under
this Section 10.12 as the Trustee.


 


The Trustee
shall not be under any responsibility to determine the correctness of any
provisions contained in any supplemental indenture executed pursuant to Section
10.11, but may accept as conclusive evidence of the correctness thereof, and
shall be protected in relying upon, the Officers’ Certificate with respect
thereto which the Company is obligated to file with the Trustee pursuant to
Section 10.11.


 


Section
10.13.  Voluntary Reduction.  The
Company from time to time may reduce the Conversion Price by any amount for any
period of time if such period is at least 20 Trading Days or such longer period
as may be required by law and if the reduction is irrevocable during such
period; if the Board of Directors determines, in good faith, that such decrease
would be in the best interests of the Company; provided
that in no event may the Conversion Price be less than the par value of a
Ordinary Share. Any such determination by the Board of Directors shall be
conclusive.


 


Section 10.14.
 Conversion Value of Securities
Tendered.


 


(a)           Subject
to certain exceptions described in Sections 10.01(a)(iii) and 10.01(a)(iv),
Holders tendering the Securities for conversion shall be entitled to receive,
upon conversion of such Securities, cash and Ordinary Shares, the value of
which (the “Conversion Value”)
shall be equal to the product of:


 


(i)    (A) the aggregate principal
amount of Securities to be converted divided by 1,000 multiplied by (B) the
then applicable Conversion Rate; and


 


(ii)   the average of the Ordinary
Share Prices for the ten consecutive Trading Days (appropriately adjusted to
take into account the occurrence during such period of stock splits, stock
dividends and similar events) beginning on the second Trading Day immediately
following the day the Securities are tendered for conversion (the “Ten Day Average Closing Share Price”); provided that if the Ordinary Shares are
not listed on The New York Stock Exchange, then the Ten Day Average Closing
Share Price shall be determined by the Company by reference to the Ordinary
Share Price as reported by NASDAQ.


 


73

















 


(b)           Subject
to certain exceptions described below and under Sections 10.01(a)(iii) and
10.01(a)(iv), the Company shall deliver the Conversion Value to converting
holders as follows:


 


(i)    an amount in cash (the “Principal Return”) equal to the lesser of
(a) the Conversion Value of the Securities to be converted and (b) the
aggregate principal amount of the Securities to be converted;


 


(ii)   if the Conversion Value of the
Securities to be converted is greater than the Principal Return, an amount in
whole shares (the “Net Shares”),
determined as set forth below, equal to such aggregate Conversion Value less
the Principal Return (the “Net Share Amount”);
and


 


(iii)  an amount paid in cash, determined
as set forth below, in lieu of any fractional Ordinary Shares.


 


The number of
Net Shares to be paid shall be determined by dividing the Net Share Amount by
the Ten Day Average Closing Share Price. 
Holders of Securities will not receive fractional shares upon conversion
of Securities.  In lieu of fractional
shares, Holders will receive cash for the value of the fractional shares, which
cash payment shall be based on the Ten Day Average Closing Share Price.


 


The Conversion
Value, Principal Return, number of Net Shares and Net Share Amount shall be
determined by the Company at the end of the ten consecutive Trading Day period
beginning on the second Trading Day immediately following the day the
Securities are tendered for conversion (the “Determination
Date”).


 


(c)           The
Company shall pay the Principal Return and cash for fractional shares and
deliver the Net Shares, if any, as promptly as practicable after the
Determination Date, but in no event later than four Business Days thereafter.  Except as provided in Section 10.02(c),
delivery of the Principal Return, Net Shares and cash in lieu of fractional
shares shall be deemed to satisfy the Company’s obligation to pay the principal
amount of a converted Security and accrued but unpaid interest (including Additional
Interest, if any) thereon.  Any accrued
interest (including Additional Interest, if any) payable on a converted
Security shall be deemed paid in full rather than canceled, extinguished or
forfeited.


 


(d)           Neither
the Trustee nor the Conversion Agent has any duty to determine or calculate the
Conversion Value, Principal Return, number of Net Shares, the Net Share Amount
or any other computation required under this Article 10, all of which shall be
determined by the Company (or the Trustee, as


 


74

















 


the case may
be) in accordance with the provisions of this Indenture, and the Trustee and
Conversion Agent shall not be under any responsibility to determine the
correctness of any such determinations and/or calculations and may conclusively
rely on the correctness thereof.


 


Section 10.15.  Simultaneous Adjustments.  In the event that this Article 10
requires adjustments to the Conversion Price under more than one of Sections
10.05(a) and (c), and the record dates for the distributions giving rise to
such adjustments shall occur on the same date, then such adjustments shall be
made by applying, first, the provisions of Section 10.05(c), as applicable,
and, second, the provisions of Section 10.05(a).  If more than one event requiring adjustment pursuant to Section
10.05 shall occur before completing the determination of the Conversion Price
for the first event requiring such adjustment, then the Board of Directors
(whose determination shall, if made in good faith, be conclusive) shall make
such adjustments to the Conversion Price (and the calculation thereof) after
giving effect to all such events as shall preserve for Holders the Conversion
Price protection provided in Section 10.05.


 


ARTICLE 11

SUBORDINATION


 


Section 11.01.  Securities Subordinated to Senior
Debt.   The Company and
each Holder, by its acceptance of Securities, agree that (a) the payment of the
principal of and interest on the Securities and (b) any other payment in
respect of the Securities, including on account of the acquisition or
redemption of the Securities by the Company (including pursuant to Section
3.09) is subordinated, to the extent and in the manner provided in this Article
11, to the prior payment in full in Cash or Cash Equivalents of all Senior Debt
of the Company, and that these subordination provisions are for the benefit of
the holders of Senior Debt.


 


This Article
11 shall constitute a continuing offer to all Persons who, in reliance upon
such provisions, become holders of, or continue to hold, Senior Debt, and such
provisions are made for the benefit of the holders of Senior Debt, and such
holders are made obligees hereunder and any one or more of them may enforce
such provisions.


 


Section 11.02         No Payment on Securities in Certain
Circumstances.


 


(a)           No payment of any kind
or character from any source may be made by or on behalf of the Company on
account of the principal of, premium, if any, or interest or Additional
Interest or Additional Amounts on the Securities (including any repurchases of
Securities and rescission payments), or on account of the redemption provisions
of the Securities, for cash or property, (i) upon the


 


75

















 


maturity of
any Senior Debt of the Company by lapse of time, acceleration (unless waived)
or otherwise, unless and until all principal of, premium, if any, the interest
on and any fee or other amount due in respect of such Senior Debt are first
paid in full in cash or Cash Equivalents or otherwise to the extent holders
accept satisfaction of amounts due by settlement in other than cash or Cash
Equivalents, or (ii) in the event of default in the payment of any principal
of, premium, if any, or interest on or any fee or other amount due in respect
of Senior Debt of the Company when it becomes due and payable, whether at
maturity or at a date fixed for prepayment or by declaration or otherwise (a “Payment Default”), unless and until such
Payment Default has been cured or waived or otherwise has ceased to exist.


 


(b)           Upon
(i) the happening of an event of default (other than a Payment Default) that
permits the holders of Senior Debt to declare such Senior Debt to be due and
payable and (ii) prompt written notice of such event of default given to the
Trustee by the Representative under the Credit Agreement or the holders of an
aggregate of at least $25 million principal amount outstanding of any other
Senior Debt or their representative (a “Payment
Blockage Notice”), then, unless and until such event of default has
been cured or waived or otherwise has ceased to exist (including by reason of
the repayment in full of such Senior Debt in cash or Cash Equivalents), no
payment (by set-off or otherwise) may be made by or on behalf of the Company
which is an obligor under such Senior Debt on account of the principal of,
premium, if any or interest or Additional Interest or Additional Amounts on the
Securities, including any repurchases of Securities and rescission payments; provided, however, that so long as the
Credit Agreement is in effect, a Payment Blockage Notice may only be given by
the Representative under the Credit Agreement unless otherwise agreed in
writing by the requisite lenders under the Credit Agreement.  Notwithstanding the immediately preceding
sentence, unless the Senior Debt in respect of which such event of default
exists has been declared due and payable in its entirety within 179 days after
the Payment Blockage Notice is delivered as set forth above (the “Payment Blockage Period”) (and such
declaration has not been rescinded or waived), at the end of the Payment
Blockage Period, the Company shall be required to pay all sums not paid to the
Holders of the Securities during the Payment Blockage Period due to the
foregoing prohibitions and to resume all other payments as and when due on the
Securities.  Any number of Payment
Blockage Notices may be given; provided, however, that (i) not more than one
Payment Blockage Notice shall be given within a period of any 360 consecutive
days, and (ii) no default that existed upon the date of such Payment Blockage
Notice or the commencement of such Payment Blockage Period (whether or not such
event of default is on the same issue of Senior Debt) shall be made the basis
for the commencement of any other Payment Blockage Period, unless such event of
default shall have been cured or waived for a period of not less than 90 days.


 


76

















 


(c)           In
furtherance of the provisions of Section 11.01, in the event that,
notwithstanding the foregoing provisions of this Section 11.02 or the
provisions of Section 11.03, any payment or distribution of assets shall be
received by the Trustee or the Holders at a time when such payment or
distribution is prohibited by such provisions, such payment or distribution
shall be held in trust for the benefit of the holders of such Senior Debt, and
shall be paid or delivered by the Trustee or such Holders, as the case may be,
to the holders of such Senior Debt remaining unpaid or unprovided for or to
their representative or representatives, or to the trustee or trustees under
any indenture pursuant to which any instruments evidencing any of such Senior
Debt may have been issued, ratably according to the aggregate principal amounts
remaining unpaid on account of such Senior Debt held or represented by each,
for application to the payment of all such Senior Debt remaining unpaid, to the
extent necessary to pay all such Senior Debt in full in cash or Cash
Equivalents or otherwise to the extent holders accept satisfaction of amounts
due by settlement in other than cash or Cash Equivalents after giving effect to
any concurrent payment or distribution to the holders of such Senior Debt.


 


Section 11.03  Securities Subordinated to Prior
Payment of All Senior Debt on Dissolution, Liquidation or
Reorganization.  Upon any
distribution of assets of the Company upon any dissolution, winding up, total
or partial liquidation or reorganization of the Company, whether voluntary or
involuntary, in bankruptcy, insolvency, receivership or a similar proceeding or
upon assignment for the benefit of creditors or any marshalling of assets or
liabilities:


 


(a)           the
holders of all Senior Debt of the Company will first be entitled to receive
payment on account of all principal of, premium, if any, interest on and fees
and other amounts payable in respect of such Senior Debt in full in cash or
Cash Equivalents or otherwise to the extent holders accept satisfaction of
amounts due by settlement in other than cash or Cash Equivalents before the
Holders are entitled to receive any payment on account of principal of,
premium, if any, and interest and Additional Interest or Additional Amounts on
the Securities, including any repurchase of Securities and rescission payments,
other than payments by way of the issuance of Junior Securities; and


 


(b)           any
payment or distribution of assets of the Company of any kind or character from
any source, whether in cash, property or securities (other than payments by way
of the issuance of Junior Securities) to which the Holders or the Trustee on
behalf of the Holders would be entitled (by set-off or otherwise), will be paid
by the liquidating trustee or agent or other person making such a payment or
distribution directly to the holders of such Senior Debt or their representative
to the extent necessary to make payment in full in cash or Cash Equivalents on
all such Senior Debt remaining unpaid, after giving effect to any concurrent
payment or distribution to the holders of such Senior Debt.


 


77

















 


Section 11.04  Securityholders to Be Subrogated to
Rights of Holders of Senior Debt.  Subject
to the payment in full in cash or Cash Equivalents of all Senior Debt of the
Company as provided herein, the Holders of Securities shall be subrogated to
the rights of the holders of such Senior Debt to receive payments or
distributions of assets of the Company applicable to the Senior Debt until all
amounts owing on the Securities shall be paid in full, and for the purpose of
such subrogation no such payments or distributions to the holders of such
Senior Debt by or on behalf of the Company, which otherwise would have been
made to the Holders shall, as between the Company and the Holders, be deemed to
be payment by the Company or on account of such Senior Debt, it being
understood that the provisions of this Article 11 are and are intended solely
for the purpose of defining the relative rights of the Holders, on the one
hand, and the holders of such Senior Debt, on the other hand.


 


If any payment
or distribution to which the Holders would otherwise have been entitled but for
the provisions of this Article 11 shall have been applied, pursuant to the
provisions of this Article 11, to the payment of amounts payable under Senior
Debt of the Company, then the Holders shall be entitled to receive from the
holders of such Senior Debt any payments or distributions received by such
holders of Senior Debt in excess of the amount sufficient to pay all amounts
payable under or in respect of such Senior Debt in full in Cash or Cash
Equivalents.


 


Section 11.05  Obligations
of the Company Unconditional.  Nothing
contained in this Article 11 or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as between the Company and the
Holders, the obligation of each such Person, which is absolute and
unconditional, to pay to the Holders the principal of, premium, if any, and
interest and Additional Interest on the Securities as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the Holders and creditors of the Company
other than the holders of the Senior Debt, nor shall anything herein or therein
prevent the Trustee or any Holder from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article 11 and under the proviso to Section 6.02, of
the holders of Senior Debt in respect of cash, property or securities of the
Company received upon the exercise of any such remedy or otherwise.  Notwithstanding anything to the contrary in
this Article 11 or elsewhere in this Indenture or in the Securities, upon any
distribution of assets of the Company referred to in this Article 11, the Trustee,
subject to the provisions of Sections 6.01 and 6.02, and the Holders shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending, or a certificate of the liquidating
Trustee or agent or other Person making any distribution to the Trustee or to
the Holders for the purpose of ascertaining the persons entitled to participate


 


78

















 


in such distribution, the holders of the
Senior Debt and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article 11 so long as such court has
been apprised of the provisions of, or the order, decree or certificate makes
reference to, the provisions of this Article 11.  Nothing in this Section 11.05 shall apply to the claims of, or
payments to, the Trustee under or pursuant to Section 7.07.


 


Section 11.06  Trustee
Entitled to Assume Payments Not Prohibited in Absence of Notice.  The Trustee shall not at any time
be charged with knowledge of the existence of any facts which would prohibit
the making of any payment to or by the Trustee unless and until a Trust Officer
of the Trustee or any Paying Agent shall have received, no later than two
Business Days prior to such payment, written notice thereof from the Company or
from one or more holders of Senior Debt or from any representative therefor
and, prior to the receipt of any such written notice, the Trustee, subject to
the provisions of Sections 7.01 and 7.02, shall be entitled in all respects
conclusively to assume that no such fact exists.  The Company shall give prompt written notice to the Trustee of
any fact actually known to the Company which would prohibit the making of any
payment to or by the Trustee in respect of the Securities.


 


Section 11.07  Application
by Trustee of Assets Deposited with It. 
Amounts deposited in trust with the Trustee pursuant to and
in accordance with Article 8 shall be for the sole benefit of Securityholders
and, to the extent allocated for the payment of Securities, shall not be
subject to the subordination provisions of this Article 11.  Otherwise, any deposit of assets with the
Trustee or any Paying Agent (whether or not in trust) for the payment of
principal of or interest on any Securities shall be subject to the provisions
of Sections 11.01, 11.02, 11.03 and 11.04; provided
that, if prior to two Business Days preceding the date on which by
the terms of this Indenture any such assets may become distributable for any
purpose (including without limitation, the payment of either principal of or
interest on any Security) the Trustee or such Paying Agent shall not have
received with respect to such assets the written notice provided for in Section
11.06, then the Trustee or such Paying Agent shall have full power and
authority to receive such assets and to apply the same to the purpose for which
they were received, and shall not be affected by any notice to the contrary
which may be received by it on or after such date.


 


Section 11.08  Subordination
Rights Not Impaired by Acts or Omissions of the Company or Holders of
Senior Debt, Etc.; Modifications.  No
right of any present or future holders of any Senior Debt to enforce
subordination provisions contained in this Article 11 shall at any time in any
way be prejudiced or impaired by any act or failure to act on the part of the
Company or by any act or failure to act, in good faith, by any such holder, or
by any noncompliance by the Company


 


79

















 


with the terms of this Indenture, regardless
of any knowledge thereof which any such holder may have or be otherwise charged
with.  The holders of Senior Debt may
extend, renew, modify or amend the terms of the Senior Debt or any security
therefor and release, sell or exchange such security and otherwise deal freely
with the Company, all without affecting the liabilities and obligations of the
parties to this Indenture or the Holders. 
The subordination provisions are solely for the benefit of the holders
from time to time of Senior Debt and may not be rescinded, cancelled, amended
or modified in any way other than any amendment or modification that would not
adversely affect the rights of any holder of Senior Debt or any amendment or
modification that is consented to by each holder of Senior Debt that would be
affected thereby.  The subordination
provisions of this Article 11 shall continue to be effective or be reinstated,
as the case may be, if at any time payment and performance of the Senior Debt
is, pursuant to applicable law, avoided, recovered or rescinded or must
otherwise be restored or returned by any holder of Senior Debt, whether as a
“voidable preference,” “fraudulent conveyance,” “fraudulent transfer,” or
otherwise, all as though such payment or performance had not been made.


 


Section 11.09  Securityholders
Authorize Trustee to Effectuate Subordination of Securities.  Each Holder of the Securities by
his acceptance thereof authorizes and expressly directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination provisions contained in this Article 11 and to protect the rights
of the Holders pursuant to this Indenture, and appoints the Trustee his
attorney-in-fact for such purpose, including, in the event of any dissolution,
winding up, liquidation or reorganization of the Company (whether in
bankruptcy, insolvency or receivership proceedings or upon an assignment for
the benefit of creditors or any other marshalling of assets and liabilities of
the Company) the immediate filing of a claim for the unpaid balance of his
Securities in the form required in said proceedings and cause said claim to be
approved.  If the Trustee does not file
a proper claim or proof of debt in the form required in such proceeding prior
to 30 days before the expiration of the time to file such claim or claims, then
the holders of the Senior Debt or their representative are or is hereby
authorized to have the right to file and are or is hereby authorized to file an
appropriate claim for and on behalf of the Holders of said Securities.  Nothing herein contained shall be deemed to
authorize the Trustee or the holders of Senior Debt or their representative to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee or
the holders of Senior Debt or their representative to vote in respect of the
claim of any Securityholder in any such proceeding.


 


Section 11.10  Right of
Trustee to Hold Senior Debt.  The
Trustee shall be entitled to all of the rights set forth in this Article 11 in
respect of any Senior Debt


 


80

















 


at any time held by it to the same extent as
any other holder of Senior Debt, and nothing in this Indenture shall be
construed to deprive the Trustee of any of its rights as such holder.


 


Section 11.11  Article
11 Not to Prevent Events of Default. 
The failure to make a payment on account of principal of,
premium, if any, or interest on the Securities by reason of any provision of
this Article 11 shall not be construed as preventing the occurrence of a
Default or an Event of Default under Section 7.01 or in any way limit the
rights of the Trustee or any Holder to pursue any other rights or remedies with
respect to the Securities.


 


Section 11.12  No
Fiduciary Duty of Trustee to Holders of Senior Debt.  Notwithstanding anything to the
contrary herein, the Trustee shall not be deemed to owe any fiduciary duty to
any present or future holders of Senior Debt, and shall not be liable to any
such holders (other than for its willful misconduct or negligence) if it shall
in good faith mistakenly pay over or distribute to the Holders of Securities or
the Company or any other Person, cash, property or securities to which any
holders of Senior Debt shall be entitled by virtue of this Article 11 or
otherwise.  The Trustee undertakes to
perform or to observe only such of the covenants and obligations as are
specifically set forth in this Article 11, and no implied covenants or
obligations with respect to such holders of Senior Debt shall be implied in
this Indenture against the Trustee. 
Nothing in this Section 11.12 shall affect the obligation of any other
such Person to hold such payment for the benefit of, and to pay such payment
over to, the holders of Senior Debt or their representative.  In the event of any conflict between the
fiduciary duty of the Trustee to the Holders of Securities and its duty to the
holders of Senior Debt, the Trustee is expressly authorized to resolve such
conflict in favor of the Holders.


 


ARTICLE 12

MISCELLANEOUS


 


Section 12.01.  Trust Indenture Act Controls.  If any provision of this
Indenture limits, qualifies, or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.


 


Section 12.02.  Notices.  Any
request, demand, authorization, notice, waiver, consent or communication shall
be in writing, in the English language and delivered in person or mailed by
first-class mail, postage prepaid, addressed as follows, or transmitted by
facsimile transmission to the following facsimile numbers:


 


81

















 


if to the
Company, to:


 


Kerzner
International Limited

Coral Towers

Paradise Island, The Bahamas

Attention: General Counsel

Facsimile No.: (    )    -


 


if to the
Trustee, to:


 


The Bank of
New York Trust Company, N.A.

10161 Centurion Parkway

Jacksonville, Florida  32256, 

Attention: Corporate Trust Division

Facsimile No.: (904) 645-1921


 


The Company or the Trustee by notice given to the other in the manner
provided above may designate additional or different addresses for subsequent
notices or communications.  Any notice
or communication to the Company or the Trustee shall be deemed to have been
given or made as of the date so delivered, if personally delivered; when
receipt is acknowledged, if telecopied; and 5 Business Days after mailing if
sent by registered or certified mail, first-class postage prepaid (except that
a notice of change of address shall not be deemed to have been given until
actually received by the addressee).


 


Any notice or
communication mailed to a Securityholder shall be mailed to him by first class
mail or other equivalent means at his address as it appears on the registration
books of the Registrar and shall be sufficiently given to him if so mailed
within the time prescribed.


 


Failure to
mail a notice or communication to a Securityholder or any defect in it shall
not affect its sufficiency with respect to other Securityholders.  If a notice or communication is mailed in
the manner provided above, it is duly given, whether or not the addressee
receives it.


 


If the Company
mails a notice or communication to the Holders, it shall mail a copy to the
Trustee and each Registrar, Paying Agent, Conversion Agent or co-registrar.


 


Section
12.03.  Communication
by Holders with Other Holders.  Holders may communicate pursuant
to TIA Section 312(b) with other Holders with respect to their rights under
this Indenture or the Securities.  The
Company, the Trustee, the Registrar, the Paying Agent, the Conversion Agent and
anyone else shall have the protection of TIA Section 312(c).


 


82

















 


Section 12.04.  Certificate and Opinion as to
Conditions Precedent.  Upon
any request or application by the Company to the Trustee to take or refrain
from taking any action under this Indenture, the Company shall furnish to the
Trustee:


 


(a)           an
Officers’ Certificate stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with; and


 


(b)           an
Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.


 


In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such eligible and qualified Persons as to other matters, and any such Person
may certify or give an opinion as to such matters in one or several documents.


 


Any
certificate or opinion of an officer of the Company may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
the matters upon which his or her certificate or opinion is based are
erroneous.  Any such certificate or
Opinion of Counsel may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an officer or officers of
the Company stating the information on which counsel is relying unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.


 


Where any
Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one instrument.


 


Section 12.05.  Statements Required in Certificate
or Opinion.  Each
Officers’ Certificate or Opinion of Counsel with respect to compliance with a
covenant or condition provided for in this Indenture shall include:


 


(a)           a
statement that each person making such Officers’ Certificate or Opinion of
Counsel has read such covenant or condition;


 


83

















 


(b)           a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such Officers’ Certificate
or Opinion of Counsel are based;


 


(c)           a
statement that, in the opinion of each such person, he has made such
examination or investigation as is necessary to enable such person to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and


 


(d)           a
statement that, in the opinion of such person, such covenant or condition has
been complied with.


 


Section 12.06.  Separability Clause.  In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.


 


Section 12.07.  Rules by Trustee, Paying Agent,
Conversion Agent and Registrar.  The
Trustee may make reasonable rules for action by or a meeting of Holders.  The Registrar, the Conversion Agent and the
Paying Agent may make reasonable rules for their functions.


 


Section 12.08.  Legal Holidays. 
A “Legal Holiday”
is any day other than a Business Day. 
If any specified date (including a date for giving notice) is a Legal
Holiday, the action shall be taken on the next succeeding day that is not a
Legal Holiday, and, if the action to be taken on such date is a payment in
respect of the Securities, no interest (including Additional Interest, if any),
shall accrue for the intervening period.


 


Section 12.09.  Governing Law. 
THIS INDENTURE AND EACH SECURITY SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.


 


Section 12.10.  No Adverse Interpretation of Other
Agreements.  This
Indenture may not be used to interpret another indenture, loan or debt
agreement of any of the Company or any of its Subsidiaries.  Any such indenture, loan or debt agreement
may not be used to interpret this Indenture..


 


Section 12.11.  No Recourse Against Others.  A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
Obligations of the Company under the Securities or for any claim based on, in


 


84

















 


respect of or by reason of such Obligations
or their creation.  By accepting a
Security, each Holder shall waive and release all such liability.  The waiver and release shall be part of the
consideration for the issue of the Securities.


 


Section 12.12.  Successors.  All
agreements of the Company in this Indenture and the Securities shall bind its
successor.  All agreements of the
Trustee in this Indenture shall bind its successor.


 


Section 12.13.  Multiple Originals.  This Indenture may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.


 


Section 12.14.  Table of Contents and Headings.  The Table of Contents and the
headings of the Articles or Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered as part of this
Indenture and shall in no way modify or restrict any of the terms or provisions
hereof.


 


85

















 


IN WITNESS WHEREOF, the undersigned, being duly authorized, have
executed this Indenture on behalf of the respective parties hereto as of the
date first above written.


 


	
   

  	
  KERZNER
  INTERNATIONAL

  LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/
  John R. Allison

  	
   

  
	
   

  	
   

  	
  Name: John R. Allison

  
	
   

  	
   

  	
  Title: Executive Vice President—Chief
  Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE BANK OF
  NEW YORK TRUST

  COMPANY, N.A., as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/
  Craig A. Kaye

  	
   

  
	
   

  	
   

  	
  Name: Craig A. Kaye

  
	
   

  	
   

  	
  Title: Assistant Treasurer

  



 

















 


EXHIBIT A


 


[FORM
OF FACE OF GLOBAL SECURITY]


 


[Transfer
Restricted Securities Legend – Include only on Transfer Restricted Securities]


 


[THIS SECURITY
(OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, OR THE “SECURITIES
ACT”, AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.  EACH PURCHASER OF THIS SECURITY IS HEREBY
NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM
THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER.


 


THE HOLDER OF
THIS SECURITY AGREES FOR THE BENEFIT OF KERZNER INTERNATIONAL LIMITED (THE
“COMPANY”) THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (I) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) PURSUANT TO
AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), (III) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR (IV) TO THE COMPANY OR ANY OF ITS
SUBSIDIARIES, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND
EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY SUBSEQUENT PURCHASER OF THIS
SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.


 


THE FOREGOING
LEGEND MAY BE REMOVED FROM THE SECURITY ON SATISFACTION OF THE CONDITIONS
SPECIFIED IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.]


 


[Global
Securities Legend – Include only on Global Securities]


 


[UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF


 


A-1

















 


TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.  TRANSFERS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS TO NOMINEES OF THE
DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE
AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO
ON THE REVERSE HEREOF.]


 


A-2

















 


KERZNER
INTERNATIONAL LIMITED


 


2.375%
Convertible Senior Subordinated Notes due 2024


 


	
  No.:

  	
   

  	
  CUSIP:  [                  ]
  *

  
	
   

  	
   

  	
   

  
	
  Issue Date:

  	
   

  	
  Principal Amount:

  



 


KERZNER
INTERNATIONAL LIMITED, an international business company organized under the
laws of the Commonwealth of The Bahamas , promises to pay to [Cede & Co.]**
or registered assigns, [the principal amount
of              ]
[the principal amount as set forth on Schedule I hereto]**, on April 15, 2024,
subject to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as
if set forth at this place.  This
Security is convertible as specified on the other side of this Security.


 


Interest
Payment Dates: April 15 and October 15, commencing October 15, 2004.


 


Record Dates:
April 1 and October 1, commencing October 1, 2004.


 


	
   

  	
  KERZNER
  INTERNATIONAL

  LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 












*       For Rule 144A Global
Security only


**     Include only on Global
Security


 


A-3

















 


TRUSTEE’S CERTIFICATE OF AUTHENTICATION


 


The Bank of New York Trust Company, N.A., as
Trustee, certifies that this is one of the Securities referred to in the
within-mentioned Indenture.


 


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  	
   

  



 


 


Dated:


 


A-4

















 


[FORM
OF REVERSE SIDE OF NOTE]


 


KERZNER
INTERNATIONAL LIMITED


 


2.375%
Convertible Senior Subordinated Notes due 2024


 


(1)           Interest.


 


This Security
will bear interest from April 5, 2004 or from the most recent date to which
interest has been paid or duly provided for, semi-annually in arrears on April
15 and October 15 of each year, subject to Section 12.08 of the Indenture,
commencing October 15, 2004.  This
Security will bear interest at a rate of 2.375% per annum.  The Company will pay interest on any overdue
principal amount at the interest rate borne by the Securities at the time such
interest on the overdue principal amount accrues, compounded semi-annually, and
it shall pay interest on overdue installments of interest and Additional
Interest, if any (without regard to any applicable grace period), at the same
interest rate, compounded semi-annually. 
Interest (including Additional Interest, if any) on the Securities will
be computed on the basis of a 360-day year comprised of twelve 30-day months.


 


(2)           Method of Payment.


 


The Company
will pay interest (including Additional Interest, if any) on this Security to
the Person who is the registered Holder of this Security at the close of
business on April 1 or October 1, as the case may be, immediately preceding the
related interest payment date.  Subject
to the terms and conditions of the Indenture, the Company will make payments in
respect of the Redemption Price, Repurchase Price, Change in Control Repurchase
Price and the principal amount at Stated Maturity, as the case may be, to the
Holder who surrenders a Security to a Paying Agent to collect such payments in
respect of the Security.  The Company
will pay cash amounts in money of the United States that at the time of payment
is legal tender for payment of public and private debts.  However, the Company may pay interest
(including Additional Interest, if any), the Redemption Price, Repurchase Price,
Change in Control Repurchase Price and the principal amount at Stated Maturity,
as the case may be, to a Holder holding Securities in definitive form by check
or wire payable in such money; provided that
a Holder holding Securities in definitive form with an aggregate principal
amount in excess of $1,000,000 may request payment by wire transfer in
immediately available funds to an account in North America at the election of
such Holder.  The Company may mail an interest
check to the Holder’s registered address. 
Notwithstanding the foregoing, so long as this Security is registered in
the name of a Depositary or its nominee, all payments hereon shall be made by


 


A-5

















 


wire transfer of immediately available funds
to the account of the Depositary or its nominee.


 


(3)           Paying Agent,
Conversion Agent and Registrar.


 


Initially, The
Bank of New York Trust Company, N.A. (the “Trustee”)
will act as Paying Agent, Conversion Agent and Registrar.  The Company may appoint and change any
Paying Agent, Conversion Agent or Registrar without notice, other than notice
to the Trustee; provided that the
Company will maintain at least one Paying Agent having an office or agency in
the State of New York, City of New York, Borough of Manhattan, which shall
initially be an office or agency of the Trustee.  The Company or any of its Subsidiaries or any of their Affiliates
may act as Paying Agent, Conversion Agent or Registrar.


 


(4)           Indenture.


 


The Company
issued the Securities under an Indenture dated as of April 5, 2004 (the “Indenture”), between the Company and the
Trustee.  The terms of the Securities
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939, as in effect from time to time
(the “TIA”).  Capitalized terms used herein and not
defined herein have the meanings ascribed thereto in the Indenture.  The Securities are subject to all such
terms, and Holders are referred to the Indenture and the TIA for a statement of
those terms.


 


The Securities
are unsecured senior subordinated obligations of the Company limited to up to
$230,000,000 aggregate principal amount (which shall include the option of
Deutsche Bank Securities Inc., as representative of the Initial Purchasers, to
purchase up to $30,000,000 aggregate principal amount of additional
Securities).  The Indenture does not
limit other indebtedness of the Company, secured or unsecured.


 


(5)           Redemption at the
Option of the Company.


 


No sinking
fund is provided for the Securities. 
Beginning on April 21, 2014 and during the periods thereafter to
maturity, the Securities are redeemable as a whole at any time, or in part from
time to time, in any integral multiple of $1,000, at the option of the Company
for cash at a Redemption Price equal to 100% of the principal amount, together
with accrued but unpaid interest (including Additional Interest, if any)
thereon, up to but not including the Redemption Date; provided that, if the Redemption Date is
between the close of business on an interest record date and the opening of
business on the related interest payment date, interest will be payable to the
Holders in whose names the Securities are registered at the close of business
on the relevant interest record date.


 


A-6

















 


Notice of
redemption pursuant to paragraph 5 of this Security will be mailed at least 30
days but not more than 60 days before the Redemption Date to each Holder of
Securities to be redeemed at the Holder’s registered address.  If money sufficient to pay the Redemption
Price of all Securities (or portions thereof) to be redeemed on the Redemption
Date is deposited with the Paying Agent prior to 11:00 a.m., New York City time,
on the Redemption Date, immediately after such Redemption Date, interest
(including Additional Interest, if any) shall cease to accrue on such
Securities or portions thereof. 
Securities in denominations larger than $1,000 of principal amount may
be redeemed in part but only in integral multiples of $1,000 of principal
amount.


 


(6)           Repurchase By the
Company at the Option of the Holder on Specified Dates; Repurchase at the
Option of the Holder Upon a Change in Control.


 


Subject to the
terms and conditions of the Indenture, the Company shall become obligated to
repurchase, at the option of the Holder, all or a portion of the Securities
held by such Holder, in any integral multiple of $1,000, on April 15, 2014 and
2019 (each, a “Repurchase Date”),
for cash at a price per Security equal to 100% of the aggregate principal
amount of the Security (the “Repurchase Price”),
together with accrued but unpaid interest (including Additional Interest, if
any) thereon, up to but not including the Repurchase Date upon delivery of a
Repurchase Notice containing the information set forth in the Indenture,
together with the Securities subject thereto, at any time from the opening of
business on the date that is 30 Business Days prior to such Repurchase Date
until the close of business on the Business Day prior to such Repurchase Date,
and upon delivery of the Securities to the Paying Agent by the Holder as set
forth in the Indenture.


 


At the option
of the Holder and subject to the terms and conditions of the Indenture, the
Company shall become obligated to repurchase the Securities held by such Holder
after the occurrence of a Change in Control of the Company for a Change in
Control Repurchase Price equal to 100% of the principal amount thereof plus
accrued but unpaid interest (including Additional Interest, if any) thereon, up
to but not including the Change in Control Repurchase Date which Change in
Control Repurchase Price shall be paid in cash (provided that if the Change in Control Repurchase Date is
between the close of business on an interest record date and the opening of
business on the related interest payment date, accrued but unpaid interest will
be payable to the Holders in whose names the Securities are registered at the
close of business on the relevant record date).  Holders have the right to withdraw any Change in Control
Repurchase Notice by delivering to the Paying Agent a written notice of
withdrawal in accordance with the provisions of the Indenture.


 


A-7

















 


If cash
sufficient to pay the Repurchase Price or Change in Control Repurchase Price,
as the case may be, and accrued but unpaid interest (including Additional
Interest, if any) on all Securities or portions thereof to be repurchased as of
the Repurchase Date or the Change in Control Repurchase Date, as the case may
be, is held by the Paying Agent by 11:00 a.m., New York City time, on the
Business Day immediately following the Repurchase Date or the Change in Control
Repurchase Date, interest (including Additional Interest, if any) shall cease
to accrue on such Securities (or portions thereof) as of such Repurchase Date
or Change in Control Repurchase Date, and the Holder thereof shall have no
other rights as such, other than the right to receive the Repurchase Price or
Change in Control Repurchase Price, as the case may be, and interest (including
Additional Interest, if any) upon surrender of such Security.


 


(7)           Conversion.


 


Upon
satisfaction of the conditions set forth in Section 10.01(a) of the Indenture,
a Holder of a Security may convert any portion of the principal amount of any
Security that is an integral multiple of $1,000 into cash and fully paid and
non-assessable shares (calculated as to each conversion to the nearest
1/10000th of a share) of Ordinary Shares in accordance with the provisions of
Section 10.14 of the Indenture; provided that
if such Security is called for redemption, the conversion right will terminate
at the close of business on the second Business Day immediately preceding the
Redemption Date of such Security (unless the Company shall default in making
the redemption payment when due, in which case the conversion right shall
terminate at the close of business on the date such default is cured and such
Security is redeemed).  Such conversion
right shall commence on the initial issuance date of the Securities and expire
at the close of business on the Business Day immediately preceding the date of
maturity, subject, in the case of conversion of any Global Security, to any
Applicable Procedures.  The Conversion
Price shall, as of the date of the Indenture, initially be $58.24 per Ordinary
Share.  The Conversion Rate shall, as of
the date of the Indenture, initially be approximately 17.1703.  The Conversion Price and Conversion Rate
will be adjusted under the circumstances specified in the Indenture.  Upon conversion, no adjustment for interest
(including Additional Interest, if any) or dividends will be made.  No fractional shares will be issued upon conversion;
in lieu thereof, an amount will be paid in cash based upon the Ten Day Average
Closing Share Price (as defined in the Indenture).  Except as provided in Section 10.02(c) of the Indenture, delivery
of the Principal Return, Net Shares and cash in lieu of fractional shares shall
be deemed to satisfy the Company’s obligation to pay the principal amount of a
converted Security and accrued but unpaid interest (including Additional
Interest, if any) thereon.  Any accrued
interest (including Additional Interest, if any) payable on a converted
Security will be deemed paid in full, rather than canceled, extinguished or
forfeited.


 


A-8

















 


To convert a
Security, a Holder must (a) complete and manually sign the conversion notice
set forth below and deliver such notice to the Conversion Agent, (b) surrender
the Security to the Conversion Agent, (c) furnish appropriate endorsements and
transfer documents if required by the Registrar or the Conversion Agent, (d)
pay any transfer or other tax, if required and (e) if the Security is held in
book-entry form, complete and deliver to the Depositary appropriate
instructions pursuant to the Applicable Procedures.  If a Holder surrenders a Security for conversion between the
close of business on the record date for the payment of an installment of
interest and the opening of business on the related interest payment date, the
Security must be accompanied by payment of an amount equal to the interest
(including Additional Interest, if any) payable on such interest payment date
on the principal amount of the Security or portion thereof then converted; provided that no such payment shall be
required if such Security has been called for redemption on a Redemption Date
within the period between close of business on such record date and the opening
of business on such interest payment date, or if such Security is surrendered
for conversion on the interest payment date. 
A Holder may convert a portion of a Security equal to $1,000 or any
integral multiple thereof.


 


A Security in
respect of which a Holder has delivered a Change of Control Repurchase Notice
exercising the option of such Holder to require the Company to repurchase such
Security as provided in Section 3.09 of the Indenture may be converted only if
such notice of exercise is withdrawn in accordance with the terms of the
Indenture.


 


(8)           Denominations;
Transfer; Exchange.


 


The Securities
are in fully registered form, without coupons, in denominations of $1,000 of
principal amount and integral multiples of $1,000.  A Holder may transfer or exchange Securities in accordance with
the Indenture.  The Registrar may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees required by law or permitted
by the Indenture.  The Registrar need
not transfer or exchange any Securities selected for redemption (except, in the
case of a Security to be redeemed in part, the portion of the Security not to
be redeemed), or any Securities in respect of which a Change in Control
Repurchase Notice has been given and not withdrawn (except, in the case of a
Security to be repurchased in part, the portion of the Security not to be
repurchased), or any Securities for a period of 15 days before the mailing of a
notice of redemption of Securities to be redeemed.


 


A-9

















 


(9)           Persons Deemed Owners.


 


The registered
Holder of this Security may be treated as the owner of this Security for all
purposes.


 


(10)         Amendment; Waiver.


 


Subject to
certain exceptions set forth in the Indenture, (i) the Indenture or the
Securities may be amended with the written consent of the Holders of at least a
majority in aggregate principal amount of the Securities at the time
outstanding and (ii) certain defaults may be waived with the written consent of
the Holders of a majority in aggregate principal amount of the Securities at
the time outstanding.  Subject to
certain exceptions set forth in the Indenture, without the consent of any
Holder, the Company and the Trustee may amend the Indenture or the Securities
(i) to cure any ambiguity, omission, defect or inconsistency, or make any other
change that does not adversely affect the rights of any Holder in any material
respect, (ii) to comply with Article 5 or Section 10.11 of the Indenture, (iii)
to make provisions with respect to the conversion right of Holders pursuant to
the requirements of Section 10.01 of the Indenture, (iv) to evidence and
provide for the acceptance of appointment under the Indenture by a successor
Trustee, or (v) to comply with the provisions of the TIA or any requirement of
the SEC in connection with the qualification of the Indenture under the TIA.


 


(11)         Defaults and Remedies.


 


Except as set
forth in the Indenture, if an Event of Default occurs and is continuing, the
Trustee or the Holders of not less than 25% in principal amount of Securities
then outstanding may declare all the Securities to be due and payable in the
manner, at the time and with the effect provided in the Indenture.  Holders of Securities may not enforce the
Indenture or the Securities except as provided in the Indenture.  The Trustee is not obligated to enforce the
Indenture or the Securities unless it has received security or indemnity
reasonably satisfactory to it.  The
Indenture permits, subject to certain limitations therein provided, Holders of
a majority in aggregate principal amount of the Securities at the time
outstanding to direct the Trustee in its exercise of any trust or power.  The Trustee may withhold from Holders of
Securities notice of any continuing Default or Event of Default (except a
default in payment of principal or interest when due, for any reason) if it
determines in good faith that withholding notice is in the interests of
Holders.


 


(12)         Trustee Dealings with the
Company.


 


Subject to
certain limitations imposed by the TIA, the Trustee under the Indenture, in its
individual or any other capacity, may become the owner or pledgee of Securities
and may otherwise deal with and collect obligations owed to


 


A-10

















 


it by the Company or its Affiliates and may
otherwise deal with the Company or its Affiliates with the same rights it would
have if it were not Trustee.


 


(13)         No Recourse Against
Others.


 


A director,
officer, employee or shareholder, as such, of the Company shall not have any
liability for any obligations of the Company under the Securities or the
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation.  By
accepting a Security, each Holder waives and releases all such liability.  The waiver and release are part of the
consideration for the issue of the Securities.


 


(14)         Ranking.


 


The Securities
shall be unsecured senior subordinated obligations of the Company and shall
rank junior in right of payment with any existing and future Senior Debt of the
Company and equal with any other existing and future senior subordinated
indebtedness of the Company.


 


(15)         Authentication.


 


This Security
shall not be valid until an authorized signatory of the Trustee manually signs
the Trustee’s Certificate of Authentication on the other side of this Security.


 


(16)         Abbreviations.


 


Customary
abbreviations may be used in the name of a Holder or an assignee, such as TEN
COM (“Tenants In Common”), TEN ENT
(“Tenants By The Entireties”), JT TEN (“Joint
Tenants With Right Of Survivorship And Not As Tenants In Common”), CUST (“Custodian”) and U/G/M/A (“Uniform Gift To Minors Act”).


 


(17)         Governing Law.


 


THE LAWS OF
THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THIS SECURITY.


 


(18)         CUSIP Numbers.


 


Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Securities as a convenience to the
Holders of the Securities.  No
representation is made as to the accuracy of such numbers as printed on the 


 


A-11

















 


Securities and reliance may be placed only on
the other identification numbers printed hereon.


 


	
  ASSIGNMENT FORM

  	
   

  	
  CONVERSION NOTICE

  
	
   

  	
   

  	
   

  
	
  To assign this Security, fill in the form
  below

  	
   

  	
  To convert this Security into Cash and
  Ordinary Shares of the Company, check the boxo

  
	
   

  	
   

  	
   

  
	
  I or we assign and transfer this Security
  to 

  	
   

  	
  To convert only part of this Security,
  state the principal amount to be converted (which must be $1,000 or an
  integral multiple of $1,000): 

  
	
   

  	
   

  	
   

  
	
  (Insert assignee’s soc.  sec. 
  or tax ID no.)



  	
   

  	
  If you want the stock certificate made out
  in another person’s name fill in the form below:

  
	
   

  	
   

  	
   

  
	
  (Print or type assignee’s name, address and
  zip code)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  and irrevocably appoint
                         
  agent to transfer this Security on the books of the Company.  The agent may substitute another to act
  for him.

  	
   

  	
  (Insert the other person’s soc.  sec. 
  tax ID no.)

  



  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  	
  (Print or type other person’s name, address
  and zip code)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Your Signature: 

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (Sign exactly as your name appears on the
  other side of this Security)

  
	
   

  	
   

  	
   

  
	
  Signature Guaranteed

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Participant in a Recognized Signature

  Guarantee Medallion Program

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  	
   

  	
   

  	
   

  
									



 


A-1-12

















 


FORM
OF REPURCHASE NOTICE


 


To:          Kerzner International
Limited


 


The
undersigned registered holder of this Security requests and instructs the
Company to repurchase this Security, or the portion hereof (which is $1,000
principal amount or a multiple thereof) designated below, on the date specified
below, in accordance with the terms and conditions specified in paragraph 6 of
this Security and the Indenture referred to in this Security and directs that
the check in payment for this Security or the portion thereof and any
Securities representing the portion of principal amount hereof not to be so
repurchased, be issued and delivered to the registered holder hereof unless a
different name has been indicated below. 
If any portion of this Security not repurchased is to be issued in the
name of a Person other than the undersigned, the undersigned shall pay all
transfer taxes payable with respect thereto.


 


Dated:


 


 


	
   

  	
   

  	
   

  
	
   

  	
  Signature(s)

  



 


 


Fill in for registration of Securities not

repurchased if to be issued other than

to and in the name of registered holder:


 


 


	
   

  
	
  (Name)

  
	
   

  
	
   

  
	
  (Street
  Address)

  
	
   

  
	
   

  
	
  (City, state
  and zip code)

  



 


 


Please print name and address


 


principal amount to be repurchased (if less
than all):  $   ,000


 


date of
requested repurchase: 
[              ],
20    

(specify either April 15, 2014 or 2019)


 


A-1-13

















 


FORM
OF OPTION TO ELECT REPURCHASE 

UPON A CHANGE IN CONTROL


 


To: 
Kerzner International Limited


 


The
undersigned registered holder of this Security hereby acknowledges receipt of a
notice from Kerzner International Limited (the “Company”) as to the occurrence
of a Change in Control with respect to the Company and requests and instructs
the Company to repurchase this Security, or the portion hereof (which is $1,000
principal amount or a multiple thereof) designated below, in accordance with
the terms of the Indenture referred to in this Security and directs that the
check in payment for this Security or the portion thereof and any Securities
representing any unrepurchased principal amount hereof, be issued and delivered
to the registered holder hereof unless a different name has been indicated
below. If any portion of this Security not repurchased is to be issued in the
name of a Person other than the undersigned, the undersigned shall pay all
transfer taxes payable with respect thereto.


 


Dated:


 


 


	
   

  	
   

  	
   

  
	
   

  	
  Signature(s)

  



 


Fill in for registration of Securities not

repurchased if to be issued other than

to and in the name of registered holder:


 


 


	
   

  	
   

  
	
  (Name)

  
	
   

  
	
   

  	
   

  
	
  (Street
  Address)

  
	
   

  
	
   

  	
   

  
	
  (City, state
  and zip code)

  



 


 


Please print name and address


 


principal amount to be repurchased (if less
than all):  $   ,000


 


A-14

















 


SCHEDULE
I*


 


KERZNER
INTERNATIONAL LIMITED

2.375% Convertible Senior Subordinated Notes due 2024


 


No:


 


	
  Date

  	
   

  	
  Principal
  Amount

  	
   

  	
  Notation

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


 












* Include only on Global Security


 


A-15

















 


EXHIBIT B


 


Transfer
Certificate


 


In connection
with any transfer of any of the Securities within the period prior to the
expiration of the holding period applicable to the sales thereof under Rule
144(k) under the Securities Act of 1933, as amended (the “Securities Act”)
(or any successor provision), the undersigned registered owner of this Security
hereby certifies with respect to
$                 
principal amount of the above-captioned Securities presented or surrendered on
the date hereof (the “Surrendered Securities”) for registration of
transfer, or for exchange or conversion where the securities deliverable upon
such exchange or conversion are to be registered in a name other than that of
the undersigned registered owner (each such transaction being a “transfer”),
that such transfer complies with the restrictive legend set forth on the face
of the Surrendered Securities for the reason checked below:


 


o            The
transfer of the Surrendered Securities complies with Rule 144A under the
U.S.  Securities Act of 1933, as amended
(the “Securities Act”); or


 


o            The
transfer of the Surrendered Securities is pursuant to an exemption from the
registration requirement of the Securities Act provided by Rule 144 thereunder;
or


 


o            The
transfer of the Surrendered Securities is pursuant to an effective registration
statement under the Securities Act; or


 


o            A
transfer of the Surrendered Securities is made to the Company or any of its
subsidiaries.


 


The
undersigned confirms that, to the undersigned’s knowledge, such Securities are
not being transferred to an “affiliate” of the Company as defined in Rule 144
under the Securities Act (an “Affiliate”).


 


 


	
  Date:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Signature(s)

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  (If the registered owner is a corporation,
  partnership or fiduciary, the title of the

  Person signing on behalf of such

  registered owner must be stated.)

  	
   

  
	
   

  	
   

  	
   

  
	
  Signature(s)e Guaranteed

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Participant in a Recognized Signature

  Guarantee Medallion Program

  	
   

  	
   

  
						



 


B-1

















 


	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  	
   

  



 


B-2